Defaulting Lender. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender: (a) commitment fees shall cease to accrue on the unfunded portion of the Revolving Credit Commitment of such Defaulting Lender pursuant to Section 2.10(a); (b) the Revolving Credit Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, all affected Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.02, other than pursuant to Section 10.02(b)(i), 10.02(b)(ii) or 10.02(b)(iii) that directly affects such Lender), provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lender; (c) if any LC Exposure exists at the time such Lender becomes a Defaulting Lender then: (i) all or any part of such LC Exposure shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s LC Exposure does not exceed the total of all non-Defaulting Lenders’ Revolving Credit Commitments and (y) the conditions set forth in Section 5.02 are satisfied at such time; (ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Company shall within one Business Day following notice by the Administrative Agent cash collateralize such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(i) for so long as such LC Exposure is outstanding; (iii) if the Company cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to this Section 2.18(c), the Company shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.10(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized; (iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.18(c), then the fees payable to the Lenders pursuant to Sections 2.10(a) and 2.10(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; or (v) if any Defaulting Lender’s LC Exposure is neither cash collateralized nor reallocated pursuant to this Section 2.18(c), then, without prejudice to any rights or remedies of any Issuing Lender or any Lender hereunder, all commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.10(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Lender(s) until such LC Exposure is cash collateralized and/or reallocated; (d) so long as any Lender is a Defaulting Lender, the Issuing Lenders shall not be required to issue, extend, amend or increase any Letter of Credit, unless the applicable Issuing Lender is satisfied that the related exposure will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers in accordance with this Section 2.18(c), and participating interests in any such newly issued, extended or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.18(c)(i) (and Defaulting Lenders shall not participate therein); and (e) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.16(d) but excluding Section 2.17(b)) shall, in lieu of being distributed to such Defaulting Lender, 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 Lender to the Administrative Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to any Issuing Lender, (iii) third, if so determined by the Administrative Agent or requested by an Issuing Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in any Letter of Credit, (iv) fourth, to the funding of any Loan in respect of which such Defaulting Lender 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 Borrower Representative, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders or an Issuing Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender or such Issuing Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, (vii) seventh, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, and (viii) eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is (x) a prepayment of the principal amount of any Loans or reimbursement obligations in respect of LC Disbursements for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 3.02 are satisfied, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Lender. In the event that the Administrative Agent, the Company and the Issuing Lenders agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Defaulting Lender’s Revolving Credit Commitment and on such date such Defaulting Lender shall purchase at par such of the Loans of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Defaulting Lender to hold such Loans in accordance with its Applicable Percentage.
Appears in 6 contracts
Sources: Credit Agreement (Lamar Media Corp/De), Credit Agreement (Lamar Media Corp/De), Credit Agreement (Lamar Media Corp/De)
Defaulting Lender. Notwithstanding At any provision of this Agreement to the contrary, if any time when a Lender becomes is then a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion of the Revolving Credit Commitment of such Defaulting Lender pursuant to Section 2.10(a);
(b) the Revolving Credit Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all LendersBorrower, all affected Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.02, other than pursuant to Section 10.02(b)(i), 10.02(b)(ii) or 10.02(b)(iii) that directly affects such Lender), provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lender;
(c) if any LC Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of such LC Exposure shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages but only Borrower’s election, may elect to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus terminate such Defaulting Lender’s LC Exposure does not exceed Commitment hereunder; provided that (A) such termination must be of the total of all non-Defaulting Lenders’ Revolving Credit Commitments and Lender’s entire Commitment, (yB) the conditions set forth in Section 5.02 are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Company Borrower shall within one Business Day following notice pay all amounts owed by the Administrative Agent cash collateralize Borrower to such Defaulting Lender in such Defaulting Lender’s LC Exposure capacity as a Lender under this Agreement and under the other Credit Documents (after giving effect including principal of and interest on the Revolving Advances owed to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(i) for so long as such LC Exposure is outstanding;
(iii) if the Company cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant , accrued Commitment Fees (subject to this Section 2.18(c2.6(a)), and letter of credit fees but specifically excluding any amounts owing under Section 2.9 as result of such payment of such Advances) and shall deposit with the Company shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.10(b) with respect Administrative Agent into the Cash Collateral Account cash collateral in the amount equal to such Defaulting Lender’s LC ratable share of the Letter of Credit Exposure during (excluding any such Letter of Credit Exposure that has been reallocated pursuant to Section 2.14), (C) a Defaulting Lender’s Commitment may be terminated by the period Borrower under this Section 2.1(b)(ii) if and only if at such time, the Borrower has elected, or is then electing, to terminate the Commitments of all then existing Defaulting Lenders. Upon written notice to the Defaulting Lender and Administrative Agent of the Borrower’s election to terminate a Defaulting Lender’s Commitment pursuant to this clause (ii) and the payment and deposit of amounts required to be made by the Borrower under clause (B) above, (1) such Defaulting Lender shall cease to be a “Lender” hereunder for all purposes except that such Lender’s rights and obligations as a Lender under Sections 2.10, 2.12, 8.5 and 9.2 shall continue with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Lender” hereunder, (2) such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.18(c), then the fees payable to the Lenders pursuant to Sections 2.10(a) and 2.10(b) Commitment shall be adjusted in accordance deemed terminated, and (3) such Defaulting Lender shall be relieved of its obligations hereunder as a “Lender”, except as to its obligations under Section 8.5 shall continue with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Lender” hereunder, provided that, any such non-Defaulting Lenders’ Applicable Percentages; or
(v) if termination will not be deemed to be a waiver or release of any Defaulting claim that Borrower, the Administrative Agent, the Swing Line Lender’s LC Exposure is neither cash collateralized nor reallocated pursuant to this Section 2.18(c), then, without prejudice to any rights or remedies of any Issuing Lender or any Lender hereunder, all commitment fees that otherwise would may have been payable to such Defaulting Lender (solely with respect to the portion of against such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.10(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Lender(s) until such LC Exposure is cash collateralized and/or reallocated;
(d) so long as any Lender is a Defaulting Lender, the Issuing Lenders shall not be required to issue, extend, amend or increase any Letter of Credit, unless the applicable Issuing Lender is satisfied that the related exposure will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers in accordance with this Section 2.18(c), and participating interests in any such newly issued, extended or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.18(c)(i) (and Defaulting Lenders shall not participate therein); and
(e) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.16(d) but excluding Section 2.17(b)) shall, in lieu of being distributed to such Defaulting Lender, 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 Lender to the Administrative Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to any Issuing Lender, (iii) third, if so determined by the Administrative Agent or requested by an Issuing Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in any Letter of Credit, (iv) fourth, to the funding of any Loan in respect of which such Defaulting Lender 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 Borrower Representative, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders or an Issuing Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender or such Issuing Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, (vii) seventh, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, and (viii) eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is (x) a prepayment of the principal amount of any Loans or reimbursement obligations in respect of LC Disbursements for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 3.02 are satisfied, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Lender. In the event that the Administrative Agent, the Company and the Issuing Lenders agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Defaulting Lender’s Revolving Credit Commitment and on such date such Defaulting Lender shall purchase at par such of the Loans of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Defaulting Lender to hold such Loans in accordance with its Applicable Percentage.
Appears in 6 contracts
Sources: Credit Agreement (Hi-Crush Partners LP), Credit Agreement (Hi-Crush Partners LP), Commitment Increase Agreement and Second Amendment (Hi-Crush Partners LP)
Defaulting Lender. Notwithstanding At any provision of this Agreement to the contrary, if any time when a Lender becomes is then a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion of the Revolving Credit Commitment of such Defaulting Lender pursuant to Section 2.10(a);
(b) the Revolving Credit Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all LendersBorrower, all affected Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.02, other than pursuant to Section 10.02(b)(i), 10.02(b)(ii) or 10.02(b)(iii) that directly affects such Lender), provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lender;
(c) if any LC Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of such LC Exposure shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages but only Borrower’s election, may elect to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus terminate such Defaulting Lender’s LC Exposure does not exceed Commitment hereunder; provided that (A) such termination must be of the total of all nonDefaulting Lender’s entire Commitment, (B) the Non-Defaulting Lenders’ Revolving Credit Lenders shall each have the option to accept an assignment of the Defaulting Lender’s Commitment pursuant to Section 2.15 in lieu of a termination of Commitments and pursuant to this Section 2.1(b)(ii), (yC) to the conditions set forth extent that the Non-Defaulting Lenders do not take an assignment as provided in Section 5.02 are satisfied at such time;
(ii) if the reallocation described in immediately preceding clause (i) above cannot, or can only partially, be effectedB), the Company Borrower shall within one Business Day following notice pay all amounts owed by the Administrative Agent cash collateralize Borrower to such Defaulting Lender in such Defaulting Lender’s LC Exposure capacity as a Revolving Lender under this Agreement and under the other Credit Documents (after giving effect including principal of and interest on the Revolving Advances owed to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(i) for so long as such LC Exposure is outstanding;
(iii) if the Company cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant , accrued Commitment Fees (subject to this Section 2.18(c2.17(a)(iii)), the Company shall not be required to pay any and letter of credit fees to such Defaulting Lender pursuant (subject to Section 2.10(b2.17(a)(iii)) but specifically excluding any amounts owing under Section 2.11 as result of such payment of such Advances) and shall deposit with respect the Administrative Agent into the Cash Collateral Account cash collateral in the amount equal to such Defaulting Lender’s LC ratable share of the Letter of Credit Exposure during (including any such Letter of Credit Exposure that has been reallocated pursuant to Section 2.17), (D) a Defaulting Lender’s Commitment may be terminated by the period Borrower under this Section 2.1(b)(ii) if and only if at such time, the Borrower has elected, or is then electing, to terminate the Commitments of all then existing Defaulting Lenders, and (E) such termination shall not be permitted if a Default has occurred and is continuing at the time of such election and termination. Upon written notice to the Defaulting Lender and the Administrative Agent of the Borrower’s election to terminate a Defaulting Lender’s Commitment pursuant to this clause (ii) and the payment and deposit of amounts required to be made by the Borrower under clause (B) and (C) above, (1) such Defaulting Lender shall cease to be a “Revolving Lender” hereunder for all purposes except that such Lender’s rights and obligations as a Revolving Lender under Sections 2.12, 2.14, 8.4 and 9.1 shall continue with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Revolving Lender” hereunder, (2) such Defaulting Lender’s LC Exposure is cash collateralized;
Commitment shall be deemed terminated, and (iv3) if the LC Exposure such Defaulting Lender shall be relieved of the non-Defaulting Lenders is reallocated pursuant its obligations hereunder as a “Revolving Lender” except as to this its obligations under Section 2.18(c), then the fees payable to the Lenders pursuant to Sections 2.10(a8.4(b) and 2.10(b) Section 9.1 shall continue with respect to events and occurrences occurring before or concurrently with its ceasing to be adjusted in accordance with a “Revolving Lender” hereunder, provided that, any such non-Defaulting Lenders’ Applicable Percentages; or
(v) if any Defaulting Lender’s LC Exposure is neither cash collateralized nor reallocated pursuant termination will not be deemed to this Section 2.18(c), then, without prejudice to any rights be a waiver or remedies release of any claim that the Borrower, the Administrative Agent, the Swingline Lender, the Issuing Lender or any Lender hereunder, all commitment fees that otherwise would may have been payable to such Defaulting Lender (solely with respect to the portion of against such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.10(b) with respect to such Defaulting Lender’s LC Exposure shall be payable . Notwithstanding anything herein to the applicable Issuing Lender(s) until such LC Exposure is cash collateralized and/or reallocated;
(d) so long as any Lender is a Defaulting Lendercontrary, the Issuing Lenders shall not be required to issue, extend, amend or increase any Letter of Credit, unless the applicable Issuing Lender is satisfied that the related exposure will be 100% covered by the Revolving Credit Commitments of the nonNon-Defaulting Lenders and/or cash collateral will Lenders’ option to take an assignment as provided in Section 2.1(b)(ii)(B) may be provided exercised by the Borrowers in accordance with this Section 2.18(c), and participating interests in any such newly issued, extended or increased Letter of Credit shall be allocated among nona Non-Defaulting Lenders Lender in a manner consistent with Section 2.18(c)(i) (its sole and Defaulting Lenders absolute discretion and nothing contained herein shall not participate therein); and
(e) obligate any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.16(d) but excluding Section 2.17(b)) shall, in lieu of being distributed to such Defaulting Lender, 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 Non-Defaulting Lender to the Administrative Agent hereunder, (ii) second, pro rata, to the payment of take any amounts owing by such Defaulting Lender to any Issuing Lender, (iii) third, if so determined by the Administrative Agent or requested by an Issuing Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in any Letter of Credit, (iv) fourth, to the funding of any Loan in respect of which such Defaulting Lender 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 Borrower Representative, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders or an Issuing Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender or such Issuing Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, (vii) seventh, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, and (viii) eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is (x) a prepayment of the principal amount of any Loans or reimbursement obligations in respect of LC Disbursements for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 3.02 are satisfied, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Lender. In the event that the Administrative Agent, the Company and the Issuing Lenders agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Defaulting Lender’s Revolving Credit Commitment and on such date such Defaulting Lender shall purchase at par such of the Loans of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Defaulting Lender to hold such Loans in accordance with its Applicable Percentageassignment.
Appears in 6 contracts
Sources: Credit Agreement (Nine Energy Service, Inc.), Credit Agreement (Nine Energy Service, Inc.), Credit Agreement (Nine Energy Service, Inc.)
Defaulting Lender. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(ai) commitment fees The Commitment Fee shall cease to accrue on the unfunded portion of the Revolving Credit Commitment of such Defaulting Lender pursuant to Section 2.10(a)Lender;
(bii) the Revolving Credit Commitment and Revolving The Credit Exposure and Available Commitment of such Defaulting Lender shall not be included in determining whether all Lenders, all affected Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 10.029.1); provided, other than pursuant to Section 10.02(b)(i)that (i) such Defaulting Lender’s Commitment may not be increased or extended without its consent and (ii) the principal amount of, 10.02(b)(ii) or 10.02(b)(iii) that directly affects such Lender)interest payable on, provided that any waiver, amendment or modification requiring the consent Loans of all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require may not be reduced or excused or the consent scheduled date of payment may not be postponed as to such Defaulting Lender without such Defaulting Lender’s consent;
(ciii) if If any LC Swing Line Exposure exists at the time such Lender becomes a Defaulting Lender Lender, then:
(ia) all or any part of the Swing Line Exposure of such LC Exposure Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages but only to Commitment Percentages, provided that such reallocation does not cause the extent (x) the sum aggregate Credit Exposure of all any non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s LC Exposure does not Lender to exceed the total of all non-Defaulting Lenders’ Revolving Credit Commitments and (y) the conditions set forth in Section 5.02 are satisfied at such time;its Commitment; and
(iib) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Company shall applicable Borrowers shall, within one two Business Day Days following notice by the Administrative Agent cash collateralize Agent, prepay such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(i) for so long as such LC Exposure is outstanding;
(iii) if the Company cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to this Section 2.18(c), the Company shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.10(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralizedSwing Line Exposure;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.18(c), then the fees payable to the Lenders pursuant to Sections 2.10(a) and 2.10(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; or
(v) if any Defaulting Lender’s LC Exposure is neither cash collateralized nor reallocated pursuant to this Section 2.18(c), then, without prejudice to any rights or remedies of any Issuing Lender or any Lender hereunder, all commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.10(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Lender(s) until such LC Exposure is cash collateralized and/or reallocated;
(d) so long as any such Lender is a Defaulting Lender, the Issuing Lenders Swing Line Lender shall not be required to issue, extend, amend or increase fund any Letter of Credit, Swing Line Loan unless the applicable Issuing Lender it is satisfied that the related exposure will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers in accordance with this Section 2.18(c)Lenders, and participating interests in any such newly issued, extended or increased Letter of Credit made Swing Line Loan shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.18(c)(i2.18(iii)(a) (and such Defaulting Lenders Lender shall not participate therein); and.
(ev) If a Swing Line Lender has a good faith belief that any amount payable Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, such Swing Line Lender shall not be required to fund any Swing Line Loan unless such Swing Line Lender shall have entered into arrangements with the Borrower or such Lender, satisfactory to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.16(d) but excluding Section 2.17(b)) shall, in lieu of being distributed to such Defaulting Lender, 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 Swing Line Lender to the Administrative Agent hereunder, (ii) second, pro rata, defease any risk to the payment of any amounts owing by such Defaulting Lender to any Issuing Lender, (iii) third, if so determined by the Administrative Agent or requested by an Issuing Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in any Letter of Credit, (iv) fourth, to the funding of any Loan it in respect of which such Defaulting Lender 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 Borrower Representative, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Loans under this Agreement, hereunder.
(vi) sixth, to the payment of any amounts owing to the Lenders or an Issuing Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender or such Issuing Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, (vii) seventh, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, and (viii) eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is (x) a prepayment of the principal amount of any Loans or reimbursement obligations in respect of LC Disbursements for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 3.02 are satisfied, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Lender. In the event that the Administrative Agent, the Company Borrowers and the Issuing Lenders Swing Line Lender all agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the LC Swing Line Exposure of the Lenders shall be readjusted to reflect the inclusion of such Defaulting Lender’s Revolving Credit Commitment and on such date such Defaulting Lender shall purchase at par such of the Loans of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Defaulting Lender to hold such Loans in accordance with its Applicable Commitment Percentage.
Appears in 5 contracts
Sources: Credit Agreement (Wanger Advisors Trust), Credit Agreement (Columbia Funds Series Trust II), Credit Agreement (Columbia Funds Series Trust I)
Defaulting Lender. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) commitment fees Commitment Fees shall cease to accrue on the unfunded portion of the Revolving Credit Available Unused Commitment of such Defaulting Lender pursuant to Section 2.10(a)Lender;
(b) the Any Revolving Credit Facility Commitment and or any Revolving Credit Exposure Facility Loan of such Defaulting Lender shall not be included in determining whether all the Required Lenders, all affected Special Majority Lenders or the Required Super Majority Lenders have taken or may take any action hereunder (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 10.02, other than pursuant to Section 10.02(b)(i9.08), 10.02(b)(ii) or 10.02(b)(iii) that directly affects such Lender), ; provided that any waiverthis clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, amendment waiver or other modification requiring the consent of all Lenders such Lender under Section 9.04(a)(i) or each affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require subclauses (i), (ii) and (iii) of the consent of such Defaulting Lenderfirst proviso to Section 9.08(b);
(c) if If any LC Swingline Exposure or Revolving L/C Exposure exists at the time such Lender becomes a Defaulting Lender Lender, then:
(i) all or any part of the Swingline Exposure and Revolving L/C Exposure of such LC Exposure Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages Revolving Facility Percentages, but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures Facility Exposure plus such Defaulting Lender’s LC Swingline Exposure and Revolving L/C Exposure does not exceed the total of all non-Defaulting Lenders’ Revolving Credit Commitments and (y) the conditions set forth in Section 5.02 are satisfied at such timeFacility Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Company shall applicable Borrower shall, within one (1) Business Day following notice by the Administrative Agent cash collateralize Agent, (x) first, prepay such Swingline Exposure and (y) second, Cash Collateralize for the benefit of the applicable Issuing Bank only such Borrower’s obligations corresponding to such Defaulting Lender’s LC Revolving L/C Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(i2.05(j) for so long as such LC Revolving L/C Exposure is outstanding;
(iii) if the Company cash collateralizes any Borrower Cash Collateralizes any portion of such Defaulting Lender’s LC Revolving L/C Exposure pursuant to this Section 2.18(c)subclause (ii) above, the Company such Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.10(b) 2.13 with respect to such Defaulting Lender’s LC Revolving L/C Exposure during the period such Defaulting Lender’s LC Revolving L/C Exposure is cash collateralizedCash Collateralized;
(iv) if the LC Revolving L/C Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.18(c)subclause (i) above, then the fees payable to the Lenders pursuant to Sections 2.10(a) and 2.10(b) Section 2.13 shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Revolving Facility Percentages; orand
(v) if all or any portion of such Defaulting Lender’s LC Revolving L/C Exposure is neither cash collateralized reallocated nor reallocated Cash Collateralized pursuant to this Section 2.18(c)subclause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Lender Bank or any other Lender hereunder, all commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.10(b) 2.13 with respect to such Defaulting Lender’s LC Revolving L/C Exposure shall be payable to such Issuing Bank until and to the applicable Issuing Lender(s) until extent that such LC Revolving L/C Exposure is cash collateralized reallocated and/or reallocated;Cash Collateralized; and
(d) so So long as any such Lender is a Defaulting Lender, the Issuing Lenders Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, extend, amend or increase any Letter of Credit, unless the applicable Issuing Lender it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Revolving L/C Exposure will be 100% covered by the Revolving Credit Facility Commitments of the non-Defaulting Lenders and/or cash collateral Cash Collateral will be provided by the Borrowers Borrower in accordance with this Section 2.18(c2.23(c), and participating interests in any such newly issued, extended made Swingline Loan or any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.18(c)(i2.23(c)(i) (and such Defaulting Lenders Lender shall not participate therein); and.
(e) any amount payable In the event that the Administrative Agent, the Borrowers, the Swingline Lender and the Issuing Banks each agrees (such agreement not to such be unreasonably withheld or delayed) that a Defaulting Lender hereunder has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and Revolving L/C Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Revolving Facility Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders (whether on account other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Revolving Facility Percentage.
(f) Any payment of principal, interest, fees or otherwise and including any amount that would otherwise be payable to other amounts received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, following an Event of Default or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 2.16(d) but excluding Section 2.17(b)) shall, in lieu of being distributed to such Defaulting Lender, be retained by the Administrative Agent in a segregated account and, subject to any applicable requirements of law, 9.06 shall be applied at such time or times as may be determined by the Administrative Agent (i) as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder, (ii) ; second, pro rata, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Issuing Lender, (iii) Bank or the Swingline Lender hereunder; third, if so determined by to Cash Collateralize the Administrative Agent or requested by an Issuing Lender, to be held in Revolving L/C Exposure of such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in any Letter of Credit, (iv) accordance with Section 2.05(j); fourth, to the funding of any Loan in respect of which such Defaulting Lender 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 Borrower Representative, to be held in a deposit account and released pro rata in order to (x) satisfy such account as cash collateral for Defaulting Lender’s potential future funding obligations of the Defaulting Lender of any with respect to Loans under this Agreement, and (viy) Cash Collateralize the future Revolving L/C Exposure of such Defaulting Lender with respect to future Letters of Credit issued under this Agreement, in accordance with Section 2.05(j); sixth, to the payment of any amounts owing to the Lenders Lenders, the Issuing Banks or an Issuing the Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender Lender, the Issuing Banks or such Issuing the Swingline Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, (vii) seventhso long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrowers applicable Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, ; and (viii) eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is (x) a prepayment of the principal amount of any Loans . Any payments, prepayments or reimbursement obligations in respect of LC Disbursements for which other amounts paid or payable to a Defaulting Lender has funded its participation obligations and that are applied (yor held) made at a time when the conditions set forth in Section 3.02 are satisfied, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations pay amounts owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Lender. In the event that the Administrative Agent, the Company and the Issuing Lenders agree that by a Defaulting Lender has adequately remedied all matters that caused or to post Cash Collateral pursuant to this Section 2.23 shall be deemed paid to and redirected by such Lender to be a Defaulting Lender, then the LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Defaulting Lender’s Revolving Credit Commitment and on such date such Defaulting each Lender shall purchase at par such of the Loans of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Defaulting Lender to hold such Loans in accordance with its Applicable Percentageirrevocably consents hereto.
Appears in 4 contracts
Sources: Asset Based Revolving Credit Agreement (Hexion Inc.), Amendment Agreement (Hexion Inc.), Amendment Agreement (Hexion Inc.)
Defaulting Lender. Notwithstanding the foregoing, in the event that at any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion of the time one or more Revolving Credit Commitment of such Defaulting Lender pursuant to Section 2.10(a);
(b) the Revolving Credit Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, all affected Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.02, other than pursuant to Section 10.02(b)(i), 10.02(b)(ii) or 10.02(b)(iii) that directly affects such Lender), provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lender;
(c) if any LC Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of such LC Exposure shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s LC Exposure does not exceed the total of all non-Defaulting Lenders’ Revolving Credit Commitments and (y) the conditions set forth in Section 5.02 are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Company shall within one Business Day following notice by the Administrative Agent cash collateralize such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(i) for so long as such LC Exposure is outstanding;
(iii) if the Company cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to this Section 2.18(c), the Company shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.10(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.18(c), then the fees payable to the Lenders pursuant to Sections 2.10(a) and 2.10(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; or
(v) if any Defaulting Lender’s LC Exposure is neither cash collateralized nor reallocated pursuant to this Section 2.18(c), then, without prejudice to any rights or remedies of any Issuing Lender or any Lender hereunder, all commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.10(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Lender(s) until such LC Exposure is cash collateralized and/or reallocated;
(d) so long as any Lender is a Defaulting Lender, the Issuing Lenders no LC Issuer shall not be required to issuemake any Revolving Facility LC Issuance unless either (i) such LC Issuer has entered into arrangements reasonably satisfactory to it and the Company to eliminate such LC Issuer’s risk with respect to the Revolving Facility LC Participations of the Defaulting Lender or Defaulting Lenders, extendincluding by cash collateralizing such Defaulting Lender’s or Defaulting Lenders’ Funding Percentage of the Revolving Facility LC Outstandings (it being understood that such LC Issuer would consider the Company or such Defaulting Lender or Defaulting Lenders providing cash collateral to the Revolver Agent, amend for the benefit of such applicable LC Issuer, to secure such Defaulting Lender’s or increase any Defaulting Lenders’ Funding Percentage of the applicable Revolving Facility Letter of Credit, unless the applicable Issuing Lender is satisfied that the related exposure will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers in accordance with this Section 2.18(c), and participating interests in any such newly issued, extended or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.18(c)(i) (and Defaulting Lenders shall not participate thereinsatisfactory arrangement); and
(e) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.16(d) but excluding Section 2.17(b)) shall, in lieu of being distributed to such Defaulting Lender, 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 Lender to the Administrative Agent hereunder, (ii) secondsuch Revolving Facility LC Issuance, pro rata, to taking into account the payment of any amounts owing by such Defaulting Lender to any Issuing Lender, (iii) third, if so determined by the Administrative Agent or requested by an Issuing Lender, to be held in such account as cash collateral for future funding obligations potential failure of the Defaulting Lender of any participating interest in any Letter of Creditor Defaulting Lenders to risk participate therein, (iv) fourth, to the funding of any Loan in respect of which such Defaulting Lender 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 Borrower Representative, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders or an Issuing Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender or such Issuing Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, (vii) seventh, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, and (viii) eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is will not cause (x) a prepayment of the principal amount of any Loans Revolving Lender’s Revolving Facility Exposure to exceed its respective Revolving Commitment or reimbursement obligations in respect of LC Disbursements for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth such LC Issuer to incur aggregate credit exposure hereunder with respect to Revolving Loans and Revolving Facility LC Outstandings in Section 3.02 are satisfied, such payment shall be applied solely to prepay the Loans ofexcess of its Commitments, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Lender. In the event that the Administrative Agent, the Company and has undertaken, for the Issuing Lenders agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the LC Exposure of the Lenders shall be readjusted to reflect the inclusion benefit of such Defaulting Lender’s LC Issuer, pursuant to an instrument reasonably satisfactory in form and substance to such LC Issuer, not to thereafter incur Loans or Revolving Credit Commitment Facility LC Outstandings hereunder that would cause such LC Issuer to incur aggregate credit exposure hereunder with respect to Revolving Loans and on such date such Defaulting Lender shall purchase at par such Revolving Facility LC Outstandings in excess of the Loans of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Defaulting Lender to hold such Loans in accordance with its Applicable PercentageCommitments.
Appears in 4 contracts
Sources: Credit Agreement (American Greetings Corp), Credit Agreement (American Greetings Corp), Credit Agreement (American Greetings Corp)
Defaulting Lender. Notwithstanding the foregoing, in the event that at any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion of the Revolving Credit Commitment of such Defaulting Lender pursuant to Section 2.10(a);
(b) the Revolving Credit Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, all affected time one or more Canadian Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.02, other than pursuant to Section 10.02(b)(i), 10.02(b)(ii) or 10.02(b)(iii) that directly affects such Lender), provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lender;
(c) if any LC Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of such LC Exposure shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s LC Exposure does not exceed the total of all non-Defaulting Lenders’ Revolving Credit Commitments and (y) the conditions set forth in Section 5.02 are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Company shall within one Business Day following notice by the Administrative Agent cash collateralize such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(i) for so long as such LC Exposure is outstanding;
(iii) if the Company cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to this Section 2.18(c), the Company shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.10(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.18(c), then the fees payable to the Lenders pursuant to Sections 2.10(a) and 2.10(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; or
(v) if any Defaulting Lender’s LC Exposure is neither cash collateralized nor reallocated pursuant to this Section 2.18(c), then, without prejudice to any rights or remedies of any Issuing Lender or any Lender hereunder, all commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.10(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Lender(s) until such LC Exposure is cash collateralized and/or reallocated;
(d) so long as any Lender is a Defaulting Lender, the Issuing Lenders no LC Issuer shall not be required to issuemake any Canadian LC Issuance unless either (i) such LC Issuer has entered into arrangements reasonably satisfactory to it and the Company to eliminate such LC Issuer’s risk with respect to the Canadian LC Participations of the Defaulting Lender or Defaulting Lenders, extendincluding by cash collateralizing such Defaulting Lender’s or Defaulting Lenders’ Canadian Commitment Percentage of the Canadian LC Outstandings (it being understood that such LC Issuer would consider the Company or such Defaulting Lender or Defaulting Lenders providing cash collateral to the Revolver Agent, amend for the benefit of such LC Issuer, to secure such Defaulting Lender’s or increase any Defaulting Lenders’ Funding Percentage of the Canadian Letter of Credit, unless the applicable Issuing Lender is satisfied that the related exposure will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers in accordance with this Section 2.18(c), and participating interests in any such newly issued, extended or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.18(c)(i) (and Defaulting Lenders shall not participate thereinsatisfactory arrangement); and
(e) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.16(d) but excluding Section 2.17(b)) shall, in lieu of being distributed to such Defaulting Lender, 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 Lender to the Administrative Agent hereunder, (ii) secondsuch Canadian LC Issuance, pro rata, to taking into account the payment of any amounts owing by such Defaulting Lender to any Issuing Lender, (iii) third, if so determined by the Administrative Agent or requested by an Issuing Lender, to be held in such account as cash collateral for future funding obligations potential failure of the Defaulting Lender of any participating interest in any Letter of Creditor Defaulting Lenders to risk participate therein, (iv) fourth, to the funding of any Loan in respect of which such Defaulting Lender 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 Borrower Representative, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders or an Issuing Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender or such Issuing Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, (vii) seventh, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, and (viii) eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is will not cause (x) a prepayment of the principal amount of any Loans Canadian Lender’s Canadian Sub-Facility Exposure to exceed its respective Canadian Commitment or reimbursement obligations in respect of LC Disbursements for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth such LC Issuer to incur aggregate credit exposure hereunder with respect to Revolving Loans and Canadian LC Outstandings in Section 3.02 are satisfied, such payment shall be applied solely to prepay the Loans ofexcess of its Commitments, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Lender. In the event that the Administrative Agent, the Company and has undertaken, for the Issuing Lenders agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the LC Exposure of the Lenders shall be readjusted to reflect the inclusion benefit of such Defaulting Lender’s LC Issuer, pursuant to an instrument reasonably satisfactory in form and substance to such LC Issuer, not to thereafter incur Revolving Credit Commitment Loans or Canadian LC Outstandings hereunder that would cause such LC Issuer to incur aggregate credit exposure hereunder with respect to Revolving Loans and on such date such Defaulting Lender shall purchase at par such Canadian LC Outstandings in excess of the Loans of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Defaulting Lender to hold such Loans in accordance with its Applicable PercentageCommitments.
Appears in 4 contracts
Sources: Credit Agreement (American Greetings Corp), Credit Agreement (American Greetings Corp), Credit Agreement (American Greetings Corp)
Defaulting Lender. Notwithstanding any provision (a) If a Lender becomes, and during the period it remains, a Defaulting Lender, the following provisions shall apply:
(i) such Defaulting Lenders’ Ratable Share of this Agreement the L/C Exposure and the Swing Line Advances will, subject to the contrarylimitation in the first proviso below, if automatically be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Non-Defaulting Lenders pro rata in accordance with their respective Commitments (such reallocation to be repeated as of any date that a Lender becomes a Defaulting Lender, then whether on the following provisions shall apply for so long as date that such Lender is a required to purchase its participation in any Letter of Credit or otherwise); provided that (A) the sum of each Non-Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion ’s aggregate principal amount of Revolving Credit Advances, allocated share of the Revolving Credit L/C Exposure and allocated share of the principal amount of outstanding Swing Line Advances may not in any event exceed the Commitment of such Non-Defaulting Lender as in effect at the time of such reallocation and (B) neither such reallocation nor any payment by a Non-Defaulting Lender pursuant to Section 2.10(a);
(b) thereto will constitute a waiver or release of any claim the Revolving Credit Commitment and Revolving Credit Exposure of Borrower, the Agent, any Issuing Bank, any Swing Line Bank or any other Lender may have against such Defaulting Lender shall not be included in determining whether all Lenders, all affected Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.02, other than pursuant to Section 10.02(b)(i), 10.02(b)(ii) or 10.02(b)(iii) that directly affects such Lender), provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects cause such Defaulting Lender differently than other affected Lenders shall require the consent of such to be a Non-Defaulting Lender;
(cii) if any LC Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of such LC Exposure shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages but only to the extent that any portion (xthe “unreallocated portion”) of the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s LC share of the L/C Exposure does and Swing Line Advances cannot exceed be so reallocated, whether by reason of the total of all non-Defaulting Lenders’ Revolving Credit Commitments and (y) the conditions set forth in Section 5.02 are satisfied at such time;
(ii) if the reallocation described proviso in clause (i) above cannotor otherwise, the Borrower will, not later than three Business Days after demand by the Agent (at the direction of an Issuing Bank and/or a Swing Line Bank, as the case may be), (A) Cash Collateralize the obligations of the Borrower to each Issuing Bank and each Swing Line Bank in respect of such L/C Exposure or Swing Line Advances, as the case may be, in an amount at least equal to the aggregate amount of the unreallocated portion of such L/C Exposure or Swing Line Advances, or can only partially(B) in the case of such Swing Line Advances, be effectedprepay (subject to clause (iii) below) and/or Cash Collateralize in full the unreallocated portion thereof, or (C) make other arrangements satisfactory to the Company shall within one Business Day following notice Agent, and to each Issuing Bank and each Swing Line Bank, as the case may be, in their sole discretion to protect them against the risk of non-payment by the Administrative Agent cash collateralize such Defaulting Lender; provided that cash collateral (or the appropriate portion thereof) provided in respect of the unreallocated portion of the L/C Exposure or Swing Line Advances shall be released promptly following: (x) the elimination of the applicable L/C Exposure or Swing Line Advances giving rise thereto (including by the termination of Defaulting Lender status of the applicable Lender) or (y) the Borrower notifying the Agent that such cash collateral exceeds the required amount of Cash Collateralization and the Agent’s LC Exposure confirmation of such excess (after giving effect to any partial reallocation pursuant to clause (i) above) it being understood that only such excess amount shall be so released); provided further that in accordance with Section 2.04, to the procedures set forth in Section 2.04(i) for so long as extent that the Borrower has Cash Collateralized the aggregate amount of the unreallocated portion of such LC L/C Exposure is outstanding;or Swing Line Advances, such unreallocated portion shall not accrue any fees, commissions or interest; and
(iii) if any amount paid by the Company cash collateralizes any portion Borrower or otherwise received by the Agent for the account of such Defaulting Lender’s LC Exposure pursuant to this Section 2.18(c), the Company shall not be required to pay any fees to such a Defaulting Lender pursuant to Section 2.10(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to under this Section 2.18(c), then the fees payable to the Lenders pursuant to Sections 2.10(a) and 2.10(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; or
(v) if any Defaulting Lender’s LC Exposure is neither cash collateralized nor reallocated pursuant to this Section 2.18(c), then, without prejudice to any rights or remedies of any Issuing Lender or any Lender hereunder, all commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.10(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Lender(s) until such LC Exposure is cash collateralized and/or reallocated;
(d) so long as any Lender is a Defaulting Lender, the Issuing Lenders shall not be required to issue, extend, amend or increase any Letter of Credit, unless the applicable Issuing Lender is satisfied that the related exposure will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers in accordance with this Section 2.18(c), and participating interests in any such newly issued, extended or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.18(c)(i) (and Defaulting Lenders shall not participate therein); and
(e) any amount payable to such Defaulting Lender hereunder Agreement (whether on account of principal, interest, fees fees, indemnity payments or otherwise and including any amount that would otherwise other amounts) will not be payable to such Defaulting Lender pursuant to Section 2.16(d) but excluding Section 2.17(b)) shall, in lieu of being paid or distributed to such Defaulting Lender, but will instead be at the direction of the Borrower (A) 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 Cash Collateralize the Administrative Agent (i) first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to any Issuing Lender, (iii) third, if so determined by the Administrative Agent or requested by an Issuing Lender, to be held in such account as cash collateral for future funding obligations of the Borrower to each Issuing Bank and each Swing Line Bank in respect of such Defaulting Lender Lender’s unreallocated portion of the L/C Exposure or Swing Line Advances or to fund any participating interest in any Letter of Credit, (iv) fourth, to the funding of any Loan Advance in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreementrequired, as determined or (B) retained by the Administrative Agent, Agent in a segregated non-interest bearing account until (vsubject to Section 2.20(d)) fifth, if so determined by the Administrative Agent termination of the Commitments and the Borrower Representative, held payment in such account as cash collateral for future funding full of all obligations of the Defaulting Lender Borrower hereunder and will be applied by the Agent, to the fullest extent permitted by law, to the making of any Loans under this Agreement, (vi) sixth, payments from time to time in the following order of priority: first to the payment of any amounts owing to the Lenders or an Issuing Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender or such Issuing Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations to the Agent under this Agreement, (vii) seventh, second to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers against such Defaulting Lender to an Issuing Bank or a Swing Line Bank (pro rata as a result to the respective amounts owing to each of such Defaulting Lender’s breach of its obligations them) under this Agreement, third to the payment of post-default interest and (viii) eighththen current interest due and payable to the Lenders hereunder other than Defaulting Lenders, ratably among them in accordance with the amounts of such interest then due and payable to them, fourth to the payment of fees then due and payable to the Non-Defaulting Lenders hereunder, ratably among them in accordance with the amounts of such fees then due and payable to them, fifth to pay principal then due and payable to the Non-Defaulting Lenders hereunder ratably in accordance with the amounts thereof then due and payable to them, sixth to the ratable payment of other amounts then due and payable to the Non-Defaulting Lenders, and seventh after the termination of the Commitments, the expiration, termination or cancellation of all Letters of Credit and payment in full of all obligations of the Borrower hereunder, to pay amounts owing under this Agreement to such Defaulting Lender or as otherwise directed by a court of competent jurisdictionjurisdiction may otherwise direct. Subject to Section 2.04, any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 2.20 shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto; provided that if any such payment is amount received by the Agent pursuant to this Section 2.20(a)(iii) shall, subject to Section 2.20(c), be released to the applicable Defaulting Lender promptly upon such Defaulting Lender no longer being deemed to be a Defaulting Lender.
(xb) No Commitment of any Lender shall be increased or otherwise affected, and, except as otherwise expressly provided in this Section 2.20, performance by the Borrower of its obligations shall not be excused or otherwise modified, as a prepayment result of the principal amount operation of any Loans or reimbursement obligations in respect of LC Disbursements for which this Section 2.20. The rights and remedies against a Defaulting Lender has funded its participation obligations under this Section 2.20 are in addition to any other rights and (y) made at a time when remedies which the conditions set forth in Section 3.02 are satisfiedBorrower, the Agent or any Lender may have against such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Lender. In .
(c) If the event that the Administrative Agent, the Company Borrower and the Issuing Lenders Agent agree in writing in their reasonable determination that a Defaulting Lender has adequately remedied all matters that caused such Lender should no longer be deemed to be a Defaulting Lender, then the LC Exposure Agent will so notify the parties hereto, whereupon as of the Lenders 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 Lender will, to the inclusion extent applicable, purchase that portion of such Defaulting Lender’s Revolving Credit Commitment outstanding Advances and on such date such Defaulting Lender shall purchase at par such of the Loans L/C Exposure of the other Lenders or take such other actions as the Administrative Agent shall may determine may to be necessary to cause the Advances and L/C Exposure to be held on a pro rata basis by the Lenders in order for accordance with their pro rata share, whereupon such Lender will cease to be a Defaulting Lender; 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 Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to hold Lender will constitute a waiver or release of any claim of any party hereunder arising from such Loans in accordance with its Applicable PercentageLender’s having been a Defaulting Lender.
(d) The Borrower’s obligation to provide cash collateral as and when required pursuant to this Section 2.20 is a required payment under this Agreement.
Appears in 4 contracts
Sources: Credit Agreement (Gatx Corp), Credit Agreement (Gatx Corp), Credit Agreement (Gatx Corp)
Defaulting Lender. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion of the Revolving Credit Loan Commitment of such Defaulting Lender pursuant to Section 2.10(a2.14(c)(i);
(b) the Commitments, Loans and other Revolving Credit Commitment and Revolving Credit Exposure Obligations of such Defaulting Lender shall not be included in determining whether all Lenders, all affected the Required Lenders or the Required Revolving Lenders have taken or may take any action hereunder (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 10.02, other than pursuant to Section 10.02(b)(i9.03), 10.02(b)(ii) or 10.02(b)(iii) that directly affects such Lender), ; provided that any waiverthis clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, amendment waiver or other modification requiring the consent of all Lenders such Lender or each Lender affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lenderthereby;
(c) if any LC Exposure exists Swing Line Obligations or L/C Obligations exist at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of the Swing Line Obligations and L/C Obligations of such LC Exposure Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages Pro Rata Shares of the Revolving Facility but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures Obligations plus such Defaulting Lender’s LC Exposure Swing Line Obligations and L/C Obligations does not exceed the total of all non-Defaulting Lenders’ Revolving Credit Commitments and (y) the conditions set forth in Section 5.02 are satisfied at such timeLoan Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Company Borrower shall within one (1) Business Day following notice by the Administrative Agent (x) first, prepay such Swing Line Obligations and (y) second, cash collateralize for the benefit of each Issuing Bank only the Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure L/C Obligations (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(i) 3.11 for so long as such LC Exposure is L/C Obligations are outstanding;
(iii) if the Company Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure L/C Obligations pursuant to this Section 2.18(c)clause (ii) above, the Company Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.10(b) 3.08 with respect to such Defaulting Lender’s LC Exposure L/C Obligations during the period such Defaulting Lender’s LC Exposure is L/C Obligations are cash collateralized;
(iv) if the LC Exposure L/C Obligations of the non-Defaulting Lenders is are reallocated pursuant to this Section 2.18(c)clause (i) above, then the fees payable to the Revolving Lenders pursuant to Sections 2.10(a) and 2.10(b) Section 3.08 shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable PercentagesPro Rata Shares of the Revolving Facility; orand
(v) if all or any portion of such Defaulting Lender’s LC Exposure is L/C Obligations are neither reallocated nor cash collateralized nor reallocated pursuant to this Section 2.18(c)clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Lender Bank or any other Lender hereunder, all commitment fees Commitment Fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Revolving Loan Commitment that was utilized by such LC ExposureL/C Obligations) and letter of credit fees payable under Section 2.10(b) 3.08 with respect to such Defaulting Lender’s LC Exposure L/C Obligations shall be payable to such Issuing Bank until and to the applicable Issuing Lender(s) until extent that such LC Exposure is L/C Obligations are reallocated and/or cash collateralized and/or reallocated;collateralized; and
(d) so long as any such Lender is a Defaulting Lender, the Issuing Lenders Swing Line Bank shall not be required to fund any Swing Line Loan and no Issuing Bank shall be required to issue, extend, amend or increase any Letter of Credit, unless the applicable Issuing Lender it is satisfied that the related exposure and the Defaulting Lender’s then outstanding L/C Obligations will be 100100.0% covered by the Revolving Credit Loan Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers Borrower in accordance with this Section 2.18(c9.02(c), and participating interests in any such newly issued, extended made Swing Line Loan or any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.18(c)(i9.02(c)(i) (and such Defaulting Lenders Lender shall not participate therein); and
(e) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.16(d) but excluding Section 2.17(b)) shall, in lieu of being distributed to such Defaulting Lender, 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 . If (i) first, a Bankruptcy Event with respect to the payment a parent of any amounts owing by Lender shall occur following the Escrow Date and for so long as such Defaulting Lender to the Administrative Agent hereunder, event shall continue or (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to Swing Line Bank or any Issuing LenderBank has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, (iii) thirdthe Swing Line Bank shall not be required to fund any Swing Line Loan and such Issuing Bank shall not be required to issue, if so determined by the Administrative Agent amend or requested by an Issuing Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in increase any Letter of Credit, (iv) fourthunless the Swing Line Bank or such Issuing Bank, as the case may be, shall have entered into arrangements with the Borrower or such Lender, satisfactory to the Swing Line Bank or such Issuing Bank, as the case may be, to the funding of defease any Loan risk to it in respect of which such Defaulting Lender 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 Borrower Representative, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders or an Issuing Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender or such Issuing Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, (vii) seventh, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, and (viii) eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is (x) a prepayment of the principal amount of any Loans or reimbursement obligations in respect of LC Disbursements for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 3.02 are satisfied, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Lenderhereunder. In the event that the Administrative Agent, the Company Borrower, the Swing Line Bank and the Issuing Lenders Banks each agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the LC Exposure Swing Line Obligations and L/C Obligations of the Lenders shall be readjusted to reflect the inclusion of such Defaulting Lender’s Revolving Credit Loan Commitment and on such date such Defaulting Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swing Line Loans) as the Administrative Agent shall determine may be necessary in order for such Defaulting Lender to hold such Loans in accordance with its Applicable PercentagePro Rata Share of the Revolving Facility.
Appears in 4 contracts
Sources: Credit Agreement (Energizer SpinCo, Inc.), Credit Agreement (Energizer Holdings Inc), Escrow Agreement (Energizer SpinCo, Inc.)
Defaulting Lender. Notwithstanding At any provision of this Agreement to the contrary, if any time when a Lender becomes is then a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion of the Revolving Credit Commitment of such Defaulting Lender pursuant to Section 2.10(a);
(b) the Revolving Credit Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all LendersBorrower, all affected Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.02, other than pursuant to Section 10.02(b)(i), 10.02(b)(ii) or 10.02(b)(iii) that directly affects such Lender), provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lender;
(c) if any LC Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of such LC Exposure shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus Borrower’s election, may terminate such Defaulting Lender’s LC Exposure does not exceed Revolving Commitment hereunder; provided that (A) such termination must be of the total of all non-Defaulting Lenders’ Revolving Credit Commitments and (y) the conditions set forth in Section 5.02 are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Company shall within one Business Day following notice by the Administrative Agent cash collateralize such Defaulting Lender’s LC Exposure entire Revolving Commitment, (after giving effect to any partial reallocation pursuant to clause (iB) above) in accordance with the procedures set forth in Section 2.04(i) for so long as such LC Exposure is outstanding;
(iii) if Borrower shall pay all amounts owed by the Company cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to this Section 2.18(c), the Company shall not be required to pay any fees Borrower to such Defaulting Lender pursuant in such Lender’s capacity as a Lender under this Agreement and under the other Credit Documents (including principal of and interest on the Revolving Advances owed to such Defaulting Lender, accrued commitment fees (subject to Section 2.10(b2.7(a)), and letter of credit fees but specifically excluding any amounts owing under Section 2.10 as result of such payment of Revolving Advances) and shall deposit with respect the Administrative Agent into the Cash Collateral Account cash collateral in the amount equal to such Defaulting Lender’s LC Exposure during ratable share of the period such Letter of Credit Exposure, (C) a Defaulting Lender’s LC Exposure is cash collateralized;
(ivRevolving Commitment may be terminated by the Borrower under this Section 2.1(b)(ii) if and only if at such time, the LC Exposure Borrower has elected, or is then electing, to terminate the Revolving Commitments of all then existing Defaulting Lenders. Upon written notice to the Defaulting Lender and Administrative Agent of the non-Borrower’s election to terminate a Defaulting Lenders is reallocated Lender’s Revolving Commitment pursuant to this Section 2.18(c), then the fees payable to the Lenders pursuant to Sections 2.10(aclause (ii) and 2.10(bthe payment and deposit of amounts required to be made by the Borrower under clause (B) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; or
above, (v1) if any Defaulting Lender’s LC Exposure is neither cash collateralized nor reallocated pursuant to this Section 2.18(c), then, without prejudice to any rights or remedies of any Issuing Lender or any Lender hereunder, all commitment fees that otherwise would have been payable to such Defaulting Lender (solely shall cease to be a “Lender” hereunder for all purposes except that such Lender’s rights as a Lender under Sections 2.11, 2.13, 8.5 and 9.2 shall continue with respect to the portion of such Defaulting events and occurrences occurring before or concurrently with its ceasing to be a “Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.10(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Lender(s) until such LC Exposure is cash collateralized and/or reallocated;
(d) so long as any Lender is a Defaulting Lender, the Issuing Lenders shall not be required to issue, extend, amend or increase any Letter of Credit, unless the applicable Issuing Lender is satisfied that the related exposure will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers in accordance with this Section 2.18(c), and participating interests in any such newly issued, extended or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.18(c)(i) (and Defaulting Lenders shall not participate therein); and
(e) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.16(d) but excluding Section 2.17(b)) shall, in lieu of being distributed to such Defaulting Lender, 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 Lender to the Administrative Agent ” hereunder, (ii2) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to any Issuing Lender, (iii) third, if so determined by the Administrative Agent or requested by an Issuing Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in any Letter of Credit, (iv) fourth, to the funding of any Loan in respect of which such Defaulting Lender 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 Borrower Representative, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders or an Issuing Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender or such Issuing Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, (vii) seventh, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, and (viii) eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is (x) a prepayment of the principal amount of any Loans or reimbursement obligations in respect of LC Disbursements for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 3.02 are satisfied, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Lender. In the event that the Administrative Agent, the Company and the Issuing Lenders agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Defaulting Lender’s Revolving Credit Commitment shall be deemed terminated, and on such date (3) such Defaulting Lender shall purchase at par such be relieved of the Loans of the other Lenders its obligations hereunder as the Administrative Agent shall determine may be necessary in order for such Defaulting Lender to hold such Loans in accordance with its Applicable Percentagea “Lender”.
Appears in 3 contracts
Sources: Credit Agreement (Carbo Ceramics Inc), Credit Agreement (Carbo Ceramics Inc), Credit Agreement (Carbo Ceramics Inc)
Defaulting Lender. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) commitment fees The Unused Line Fee shall cease to accrue on the unfunded portion of the Revolving Credit Commitment of such Defaulting Lender pursuant to Section 2.10(a)2.15;
(b) the Revolving If any Letters of Credit Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, all affected Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.02, other than pursuant to Section 10.02(b)(i), 10.02(b)(ii) or 10.02(b)(iii) that directly affects such Lender), provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lender;
(c) if any LC Exposure exists are outstanding at the time such a Lender becomes a Defaulting Lender then:
: (i) all or any part of such LC Exposure the Defaulting Lender’s obligation to participate in Letters of Credit shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages Pro Rata Shares as determined pursuant to clause (a) of the definition of “Pro Rata Share” but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures Outstandings plus such Defaulting Lender’s LC Exposure obligation to participate in Letters of Credit does not exceed the total of all non-Defaulting Lenders’ Revolving Credit Commitments and (y) the conditions set forth in Section 5.02 2.18 are satisfied at such time;
; (ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Company shall Borrower shall, within one (1) Business Day following notice by the Administrative Agent cash collateralize Agent, Cash Collateralize such Defaulting Lender’s LC Exposure obligation to participate in Letters of Credit (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(i) for so long as such LC Exposure obligation to participate in Letters of Credit is outstanding;
; (iii) if the Company cash collateralizes Borrower Cash Collateralizes any portion of such Defaulting Lender’s LC Exposure obligation to participate in Letters of Credit pursuant to this Section 2.18(c)Section, the Company Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.10(b) 2.18 with respect to such Defaulting Lender’s LC Exposure obligation to participate in Letters of Credit during the period such Defaulting Lender’s LC Exposure obligation to participate in Letters of Credit is cash collateralized;
Cash Collateralized; (iv) if the LC Exposure obligation to participate in Letters of Credit of the non-Defaulting Lenders is reallocated pursuant to this Section 2.18(c)Section, then the fees payable to the Lenders pursuant to Sections 2.10(a) Section 2.15 and 2.10(b) Section 2.18 shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable PercentagesPro Rata Shares (as determined pursuant to clause (a) of the definition of “Pro Rata Share”); or
or (v) if any Defaulting Lender’s LC Exposure obligation to participate in Letters of Credit is neither cash collateralized Cash Collateralized nor reallocated pursuant to this Section 2.18(c)Section, then, without prejudice to any rights or remedies of any Issuing Lender or any Lender hereunder, all commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.10(b) 2.18 with respect to such Defaulting Lender’s LC Exposure obligation to participate in Letters of Credit shall be payable to the applicable Issuing Lender(s) Lender until such LC Exposure obligation to participate in Letters of Credit is cash collateralized and/or reallocated;; and
(dc) so So long as any Lender is a Defaulting Lender, the no Issuing Lenders Lender shall not be required to issue, extend, amend or increase any Letter of Credit, unless the applicable Issuing Lender it is satisfied that the related exposure will be 100% covered by the Revolving Credit Loan Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers Borrower in accordance with this Section 2.18(c)Section, and participating interests in any such newly issued, extended issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with this Section 2.18(c)(i) (and Defaulting Lenders shall not participate therein); and.
(d) In the event that Administrative Agent, Borrower, and the applicable Issuing Lender(s) each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the obligations to participate in Letters of Credit of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Revolving Loan Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders as Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Pro Rata Share (as determined pursuant to clause (a) of the definition of “Pro Rata Share”). At such time, the cash collateral requirements set forth in subparagraph (b), above, will terminate and the Administrative Agent will cause any cash collateral posted pursuant to subparagraph (b), above, to be returned to the applicable Borrower, subject to any terms relating to such cash collateral.
(e) any Any amount payable to such a Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.16(d) but excluding Section 2.17(b)otherwise) shall, in lieu of being distributed to such Defaulting Lender, be retained by the Administrative Agent in a segregated account and, subject to any applicable requirements of lawLaw, 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 Lender to the Administrative Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to any Issuing Lenderthe Issuer Lender(s) hereunder, (iii) third, if so determined by to the Administrative Agent funding of any Revolving Loan or requested by an Issuing Lender, to be held in such account as cash collateral for future the funding obligations of the Defaulting Lender or Cash Collateralization of any participating interest in any Letter of Credit, (iv) fourth, to the funding of any Loan Credit in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (viv) fifthfourth, if so determined by the Administrative Agent and the Borrower RepresentativeBorrower, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Loans under this Agreement, (viv) sixthfifth, pro rata, to the payment of any amounts owing to Borrower, Administrative Agent or the Lenders or an Issuing Lender as a result of any judgment of a court of competent jurisdiction obtained by Borrower, Administrative Agent, or any Lender or such Issuing Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, (vii) seventh, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, and (viiivi) eighthsixth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided provided, that if such payment is (x) a prepayment of the principal amount of any Loans or reimbursement obligations in respect of LC Disbursements for draws under Letters of Credit with respect to which a Defaulting the Issuing Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 3.02 5.1 are satisfied, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Lenders that are not Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Lender. In .
(f) Notwithstanding anything set forth herein to the event that the Administrative Agentcontrary, the Company and the Issuing Lenders agree that a Defaulting Lender has adequately remedied shall not have any voting or consent rights under or with respect to this Agreement or any other Financing Agreement or constitute a “Lender” (or be included in the calculation of “Required Lenders” hereunder) for any voting or consent rights under or with respect to this Agreement or any other Financing Agreement except with respect to items which require the vote or consent of all matters that caused such Lenders or all affected Lenders, and no Defaulting Lender shall have any other right to be a Defaulting Lenderapprove or disapprove any amendment, then the LC Exposure of waiver, consent or any other action the Lenders or the Required Lenders have taken or may take hereunder (including any consent to any amendment or waiver pursuant to Section 12.1), provided that any waiver, amendment or modification requiring the consent of all Lenders or each directly affected Lender which affects such Defaulting Lender differently than other affected Lenders shall be readjusted to reflect require the inclusion consent of such Defaulting Lender.
(g) The failure of any Defaulting Lender to make any Loan, advance or any payment required by it hereunder shall not relieve any other Lender of its obligations to make such Loan, advance or payment, but neither any Lender nor Administrative Agent shall be responsible for the failure of any Defaulting Lender to make a Loan, advance or make any other payment required hereunder.
(h) At Borrower’s Revolving Credit Commitment written request, Administrative Agent or a Person reasonably acceptable to Administrative Agent shall have the right with Administrative Agent’s written consent and in Administrative Agent’s sole discretion (but without no obligation whatsoever on Administrative Agent) to purchase from any Defaulting Lender, and each Defaulting Lender agrees that it shall, at Administrative Agent’s written request, promptly sell and assign to Administrative Agent or such date Person, all of the lending commitments and commitment interests of that Defaulting Lender for an amount equal to the principal balance of all Loans held by such Defaulting Lender shall and all accrued interest and fees with respect thereto through the date of sale, such purchase and sale to be consummated (if at par such of the Loans of the other Lenders as the all upon Administrative Agent shall determine may be necessary in order for such Defaulting Lender Agent’s election) pursuant to hold such Loans in accordance with its Applicable Percentagean executed Assignment Agreement.
Appears in 3 contracts
Sources: Revolving Loan and Security Agreement (Diversicare Healthcare Services, Inc.), Revolving Loan and Security Agreement (Diversicare Healthcare Services, Inc.), Revolving Loan and Security Agreement (Diversicare Healthcare Services, Inc.)
Defaulting Lender. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) commitment fees 4.11.1 The Unused Line Fee shall cease to accrue on the unfunded portion of the Revolving Credit Commitment of such Lender so long as it is a Defaulting Lender (except to the extent it is payable to an Issuing Bank pursuant to Section 2.10(asubsection 4.11.2(v) below);
(b) the Revolving 4.11.2 If any Letters of Credit Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, all affected Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.02, other than pursuant to Section 10.02(b)(i), 10.02(b)(ii) or 10.02(b)(iii) that directly affects such Lender), provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lender;
(c) if any LC Exposure exists are outstanding at the time such a Lender becomes a Defaulting Lender then:
(iA) the exposure under all or any part of such LC Exposure any Letters of Credit shall be reallocated among the applicable non-Defaulting Lenders that are Revolving Credit Lenders in accordance with their respective Applicable Pro Rata Percentages but only to the extent (x) the sum of all such non-Defaulting Lenders’ Revolving Credit Exposures Loans outstanding, plus such Defaulting Lender’s the LC Exposure Amount, does not exceed the total of all such non-Defaulting Lenders’ Revolving Credit Commitments Commitments; and (yB) with respect to any such exposure so reallocated, each applicable non-Defaulting Lender shall be deemed to have irrevocably and unconditionally purchased from the conditions set forth Issuing Bank an undivided interest and participation in the portion of each Letter of Credit so reallocated, in accordance with the applicable provisions of Section 5.02 are satisfied at 2.2. Subject to Section 3.12, no reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that L▇▇▇▇▇ having become a Defaulting Lender, including any claim of a non-Defaulting Lender as a result of such timenon-Defaulting L▇▇▇▇▇’s increased exposure following such reallocation;
(ii) if the reallocation reallocations described in clause (i) above cannot, or can only partially, be effected, the Company Borrowers shall within one (1) Business Day following notice by the Administrative Agent cash collateralize such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) cash collateralize Letters of Credit in accordance with an amount equal to the procedures set forth in Section 2.04(i) for so long as product of such Defaulting Lender’s Pro Rata Percentage times the total LC Exposure is outstandingAmount;
(iii) if the Company cash collateralizes any portion of such Defaulting Lender’s LC Exposure the Letters of Credit is cash collateralized pursuant to this Section 2.18(c)clause (ii) above, the Company Borrowers shall not be required to pay any fees to such Defaulting Lender pursuant to the Letter of Credit fee described in clause (i) of Section 2.10(b) 3.4 with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure portion so long as it is cash collateralized;
(iv) if any portion of the LC Exposure exposure under Letters of Credit of such Defaulting Lender is reallocated to the non-Defaulting Lenders is reallocated pursuant to this Section 2.18(c)clause (i) above, then the fees payable Letter of Credit fee described in clause (i) of Section 3.4 with respect to the Lenders pursuant such portion so reallocated to Sections 2.10(a) and 2.10(b) shall be adjusted in accordance with each such non-Defaulting Lenders’ Applicable PercentagesLender shall be paid to such non-Defaulting Lender; orand
(v) if any portion of the exposure under Letters of Credit of such Defaulting Lender’s LC Exposure Lender is neither cash collateralized nor reallocated pursuant to this Section 2.18(c)subsection 4.11.2, then, without prejudice to any rights or remedies of any Issuing Lender Bank or any Lender hereunder, all commitment fees the Unused Line Fee that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Revolving Credit Commitment that was utilized by such LC ExposureLetters of Credit) and letter the Letter of credit fees Credit fee described in clause (i) of Section 3.4 payable under Section 2.10(b) with respect to such Defaulting Lender’s LC Exposure Letters of Credit shall be payable to the applicable Issuing Lender(s) Bank until such LC Exposure is Letters of Credit are fully cash collateralized and/or reallocated;.
(d) so 4.11.3 So long as any Lender is a Defaulting Lender, the no Issuing Lenders Bank shall not be required to issue, extend, amend or increase any Letter of Credit, unless the applicable Issuing Lender it is satisfied that the related exposure will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers collateralized in accordance with this Section 2.18(c)subsection 4.11.2, and participating interests participations in any such newly issued, extended issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent accordance with Section 2.18(c)(i) their respective Pro Rata Percentages (and Defaulting Lenders shall not participate therein); and.
(e) any 4.11.4 Any amount payable to such a Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.16(d) but excluding Section 2.17(b)subsection 13.5.6) shallmay, in lieu of being distributed to such Defaulting Lender, be retained by the Administrative Agent in a segregated non-interest bearing account and, subject to any applicable requirements of lawApplicable 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 Lender to the Administrative Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to any Issuing LenderBank hereunder, (iii) third, if so determined by the Administrative Agent or requested by an Issuing Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in any Letter of Credit, (iv) fourth, to the funding of any Loan or the funding or cash collateralization of any participation in any Letter of Credit in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (viv) fifthfourth, if so determined by the Administrative Agent and the Borrower RepresentativeBorrowers, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Loans under this Agreement, (viv) sixthfifth, pro rata, to the payment of any amounts owing to Borrowers or the Lenders or an Issuing Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender Borrower or such Issuing any Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, (vii) seventh, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, Agreement and (viiivi) eighthsixth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided provided, that if such payment is (x) a prepayment of the principal amount of any Loans or reimbursement obligations LC Obligations in respect of LC Disbursements for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 3.02 are satisfiedobligations, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations LC Obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any LoansLoans of, or reimbursement obligations LC Obligations owed to, any Defaulting Lender. .
4.11.5 In the event that the Administrative Agent, the Company Borrowers and the Issuing Lenders Bank agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the LC Exposure exposure of the Lenders under the Letters of Credit shall be readjusted to reflect the inclusion of such Defaulting LenderL▇▇▇▇▇’s Revolving Credit Commitment and on such date such Defaulting Lender shall purchase at par such of the Revolving Credit Loans of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Defaulting Lender to hold such Revolving Credit Loans in accordance with its Applicable Pro Rata Percentage. The rights and remedies against a Defaulting Lender under this Section 4.11 are in addition to other rights and remedies that Borrowers, Administrative Agent, Issuing Bank and the non-Defaulting Lenders may have against such Defaulting Lender. The arrangements permitted or required by this Section 4.11 shall be permitted under this Agreement, notwithstanding any limitation on Liens or the pro rata sharing provisions or otherwise.
Appears in 3 contracts
Sources: Loan, Security and Guaranty Agreement (Quest Resource Holding Corp), Loan, Security and Guaranty Agreement (Quest Resource Holding Corp), Loan, Security and Guaranty Agreement (Quest Resource Holding Corp)
Defaulting Lender. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion of the Revolving Credit Commitment of such Defaulting Lender pursuant to Section 2.10(a);
(b) the Revolving Credit Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, all affected Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.02, other than pursuant to Section 10.02(b)(i), 10.02(b)(ii) or 10.02(b)(iii) that directly affects such Lender), provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lender;
(c) if any LC Exposure exists Swingline Loans are outstanding or any Letter of Credit Outstandings exist at the time such when a Revolving Lender becomes a Defaulting Lender then:
(i) all or any part of the participating risk in such LC Exposure Swingline Loans and Letter of Credit Outstandings shall be reallocated among the nonRevolving Lenders that are Non-Defaulting Revolving Lenders pro rata in accordance with their respective Applicable Percentages RL Percentage but only to the extent (x) the sum of all nonRevolving Extensions of Credit of all Revolving Lenders that are Non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s LC Exposure Lenders does not exceed the total aggregate amount of all nonRevolving Loan Commitments of all Non-Defaulting Revolving Lenders’ , (y) immediately following the reallocation to a Revolving Lender that is a Non-Defaulting Lender, the Revolving Extensions of Credit Commitments of such Revolving Lender do not exceed its Revolving Loan Commitment at such time and (yz) the conditions set forth in Section 5.02 7.2 are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Company Borrower shall within one (1) Business Day following notice by the Administrative Agent cash collateralize (x) first, prepay such outstanding Swingline Loans and (y) second, Collateralize in a manner reasonably satisfactory to the applicable Issuing Lender such Defaulting Lender’s LC Exposure RL Percentage of all Letter of Credit Outstandings (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(i) for so long as such LC Exposure is outstandingLetter of Credit Outstandings exist;
(iii) if the Company cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to this Section 2.18(c), the Company Borrower shall not be required to pay any fees Letter of Credit Fees to such Defaulting Lender pursuant to Section 2.10(b4.1(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralizedRL Percentage of Letter of Credit Outstandings;
(iv) if the LC Exposure participating risk in Letter of Credit Outstandings of the nonNon-Defaulting Lenders is reallocated pursuant to this Section 2.18(c2.17(a), then the fees Letter of Credit Fees payable to the Revolving Lenders pursuant to Sections 2.10(a) and 2.10(bSection 4.1(b) shall be adjusted in accordance with such nonNon-Defaulting Lenders’ Applicable RL Percentages; orand
(v) if any Defaulting Lender’s LC Exposure Lenders’ RL Percentage of Letter of Credit Outstandings is neither cash collateralized Collateralized nor reallocated pursuant to this Section 2.18(c2.17(a), then, without prejudice to any rights or remedies of any Issuing Lender or any Revolving Lender hereunder, all commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion Letter of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees Credit Fees payable under Section 2.10(b4.1(b) with respect to such Defaulting Lender’s LC Exposure RL Percentage of Letter of Credit Outstandings shall be payable to the applicable each Issuing Lender(s) Lender until such LC Exposure portion of such Letter of Credit Outstandings is cash collateralized Collateralized and/or reallocated;.
(db) Notwithstanding anything to the contrary contained in Section 2.1(c) or Section 3, so long as any Revolving Lender is a Defaulting Lender, (i) the Issuing Lenders Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Lender shall be required to issue, extend, amend or increase any Letter of Credit, unless the applicable Issuing Lender it is satisfied that the related exposure will be 100% covered by the Revolving Credit Loan Commitments of the Non-Defaulting Lenders and/or collateral has been provided by the Borrower in accordance with Section 2.17(a), and (ii) for purposes of computing the amount of the obligation of each non-Defaulting Lender to acquire, refinance or fund participations in Swing Line Loans and Letters of Credit pursuant to Section 2.1(c) and Section 3, the pro rata share of each non-Defaulting Lender shall be computed without giving effect to the Revolving Loan Commitment of such Defaulting Lender; provided that the aggregate obligation of each non-Defaulting Lender to acquire, refinance or fund participations in Letters of Credit and Swing Line Loans shall not exceed the positive difference, if any, of (1) the Revolving Loan Commitment of such non-Defaulting Lender minus (2) the aggregate principal amount of the Revolving Loans of such Lender; provided further that in the event non-Defaulting Lenders’ obligations to acquire, refinance or fund participations in Letters of Credit are increased as a result of a Defaulting Lender, then all Letter of Credit fees that would have been paid to such Defaulting Lender shall be paid to such non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers ratably in accordance with this Section 2.18(c)such increase of such non-Defaulting Lender’s obligations to acquire, refinance or fund participations in Letters of Credit.
(c) In the event that the Administrative Agent, the Borrower, each Issuing Lender and participating interests the Swingline Lender each agrees that a Defaulting Lender has adequately remedied all matters that caused such Revolving Lender to be a Defaulting Lender, then (i) the risk participations in any such newly issued, extended or increased Swingline Loans and Letter of Credit Outstandings of the Revolving Lenders shall be allocated among nonreadjusted to reflect the inclusion of such Revolving Lender’s Revolving Loan Commitments and on such date such Revolving Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Revolving Lender to hold such Revolving Loans in accordance with its RL Percentage and (ii) so long as no Event of Default then exists, all funds held as cash collateral pursuant to the Letter of Credit Back-Defaulting Lenders Stop Arrangements shall thereafter be promptly returned to the respective Borrower. If the Revolving Loan Commitments have been terminated, all other Obligations have been paid in a manner consistent with Section 2.18(c)(i) (full and Defaulting Lenders no Letters of Credit are outstanding, then, so long as no Event of Default then exists, all funds held as cash collateral pursuant to the Letter of Credit Back-Stop Arrangements and the Swingline Back-Stop Arrangements shall not participate therein); andthereafter be promptly returned to the respective Borrower.
(ed) Notwithstanding anything to the contrary contained in this Agreement, if any amount payable Lender becomes a Defaulting Lender, then, until such time as such Lender is no longer a Defaulting Lender, to such Defaulting Lender hereunder the extent permitted by applicable law:
(whether on account i) Any payment of principal, interest, fees or otherwise and including any amount that would otherwise be payable other amounts received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to such Section 11 or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 2.16(d) but excluding Section 2.17(b)) shall, in lieu of being distributed to such Defaulting Lender, be retained by the Administrative Agent in a segregated account and, subject to any applicable requirements of law, 13.2 shall be applied at such time or times as may be determined by the Administrative Agent (i) as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder, (ii) ; second, pro rata, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any each Issuing Lender or the Swingline Lender hereunder; third, to Cash Collateralize each Issuing Lender, (iii) third, if so determined by the Administrative Agent or requested by an Issuing Lender, ’s Fronting Exposure with respect to be held in such account as cash collateral for future funding obligations of the Defaulting Lender in accordance with Section 2.17(a)(ii); fourth, as the Borrower may request (so long as no Default or Event of any participating interest in any Letter of Credit, (iv) fourthDefault exists), to the funding of any Loan in respect of which such Defaulting Lender 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 Borrower RepresentativeBorrower, to be held in a deposit account and released pro rata in order to (x) satisfy such account as cash collateral for Defaulting Lender’s potential future funding obligations of the with respect to Loans under this Agreement and (y) Cash Collateralize each Issuing Lender’s future Fronting Exposure with respect to such Defaulting Lender with respect to future Letters of any Loans Credit issued under this Agreement, (vi) in accordance with Section 2.17(a)(ii); sixth, to the payment of any amounts owing to the Lenders Lenders, each Issuing Lender or an Issuing the Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, Issuing Lender or such Issuing Swingline Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, (vii) seventhso long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrowers Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, ; and (viii) eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is (x) a prepayment payment of the principal amount of any Loans or reimbursement obligations with respect to Letters of Credit in respect of LC Disbursements for which a such Defaulting Lender has not fully funded its participation obligations appropriate share, and (y) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 3.02 are satisfied7.2 were satisfied and waived, such payment shall be applied solely to prepay pay the Loans of, and reimbursement obligations with respect to Letters of Credit owed to, all nonNon-Defaulting Lenders on a pro rata basis prior to being applied to the prepayment payment of any LoansLoans of, or reimbursement obligations with respect to Letters of Credit owed to, any such Defaulting LenderLender until such time as all Loans and funded and unfunded participations in Letters of Credit and Swingline Loans are held by the Lenders pro rata in accordance with the applicable Commitments without giving effect to Section 2.17(a)(i). In the event that the Administrative AgentAny payments, the Company and the Issuing Lenders agree that prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post Cash Collateral pursuant to this Section 2.17(d)(i) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
(ii) No Defaulting Lender shall be entitled to receive any fee pursuant to Section 4.1(a) for any period during which that Lender is a Defaulting Lender (and the Borrower shall not be required to pay any such fee that otherwise would have been required to have been paid to that Defaulting Lender); provided that such Defaulting Lender shall be entitled to receive fees pursuant to Section 4.1(c) for any period during which that Lender is a Defaulting Lender only to extent allocable to its pro rata share of the stated amount of Letters of Credit for which it has adequately remedied all matters provided Cash Collateral pursuant to Section 2.17(a).
(iii) With respect to any fees not required to be paid to any Defaulting Lender pursuant to clause (ii) above, the Borrower shall (x) pay to each Non-Defaulting Lender that caused portion of any such fee otherwise payable to such Defaulting Lender with respect to such Defaulting Lender’s participation in Letters of Credit or Swingline Loans that has been reallocated to such Non-Defaulting Lender pursuant to Section 2.17(a)(i), (y) pay to each Issuing Lender the amount of any such fee otherwise payable to such Defaulting Lender to the extent allocable to each Issuing Lender’s Fronting Exposure to such Defaulting Lender, and (z) not be required to pay the remaining amount of any such fee.
(e) If the Borrower, the Administrative Agent and the Swingline Lender and each Issuing Lender agree in writing that a Lender is no longer a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any Cash Collateral), that Lender will, to the extent applicable, purchase at par that portion of outstanding Loans of the other Lenders 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 Swingline Loans to be held pro rata by the Lenders in accordance with the applicable Commitments (without giving effect to Section 2.17(a)(i)), whereupon such Lender will cease to be a Defaulting Lender, then the LC Exposure ; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Lenders shall be readjusted to reflect the inclusion of such Borrower while that Lender was a Defaulting Lender’s Revolving Credit Commitment and on such date such Defaulting Lender shall purchase at par such of ; provided further that except to the Loans of extent otherwise expressly agreed by the other Lenders as the Administrative Agent shall determine may be necessary in order for such affected parties, no change hereunder from Defaulting Lender to hold such Loans in accordance with its Applicable PercentageLender will constitute a waiver or release of any claim of any party hereunder arising from that Lender having been a Defaulting Lender.
Appears in 3 contracts
Sources: Credit and Guaranty Agreement (Ancestry.com LLC), Credit and Guaranty Agreement (Anvilire), Credit and Guaranty Agreement (Anvilire)
Defaulting Lender. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion of the Revolving Credit Commitment of such Defaulting Lender pursuant to Section 2.10(a)subsection 4.9;
(b) the Revolving Credit Commitment and Revolving Credit Aggregate Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, all affected Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.02, other than pursuant to Section 10.02(b)(i), 10.02(b)(ii) or 10.02(b)(iii) that directly affects such Lendersubsection 11.1), provided that any waiver, amendment or modification requiring (i) which requires the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected Lenders or (ii) increases or extends such Defaulting Lender’s Commitment, reduces or excuses the principal amount of, or interest or fees payable on, Loans or Letter of Credit disbursements or postpones the scheduled date of payment as to such Defaulting Lender shall require the consent of such Defaulting Lender;
(c) if any LC Swing Line Exposure or L/C Exposure exists at the time such Revolving Lender becomes a Defaulting Lender then:
(i) all or any part of the Swing Line Exposure and L/C Exposure of such LC Exposure Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Revolving Credit Commitment Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Aggregate Revolving Credit Exposures Extensions of Credit and participations in Swing Line Loans plus such Defaulting Lender’s LC Swing Line Exposure and L/C Exposure does not exceed the total of all non-Defaulting Lenders’ Revolving Credit Commitments and (y) the conditions set forth in Section 5.02 are satisfied at such timeCommitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Company Borrower shall within one three Business Day Days following notice by the Administrative Agent cash collateralize (x) first, prepay such Swing Line Exposure and (y) second, Cash Collateralize for the benefit of the Issuing Lender only the Borrower’s obligations corresponding to such Defaulting Lender’s LC L/C Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(i) for so long as such LC L/C Exposure is outstanding;
(iii) if the Company cash collateralizes Borrower Cash Collateralizes any portion of such Defaulting Lender’s LC L/C Exposure pursuant to this Section 2.18(c)clause (ii) above, the Company Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.10(b) subsection 4.11 with respect to such Defaulting Lender’s LC L/C Exposure during the period such Defaulting Lender’s LC L/C Exposure is cash collateralizedCash Collateralized;
(iv) if the LC L/C Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.18(c)clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.10(a) subsection 4.9 and 2.10(b) subsection 4.11 shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Revolving Credit Commitment Percentages; orand
(v) if all or any portion of such Defaulting Lender’s LC L/C Exposure is neither cash collateralized reallocated nor reallocated Cash Collateralized pursuant to this Section 2.18(c)clause (i) or (ii) above, then, without prejudice to any rights or remedies of any the Issuing Lender or any other Lender hereunder, all commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.10(b) subsection 4.11 with respect to such Defaulting Lender’s LC L/C Exposure shall be payable to the applicable Issuing Lender(s) Lender until and to the extent that such LC L/C Exposure is cash collateralized reallocated and/or reallocated;Cash Collateralized; and
(d) so long as any such Lender is a Defaulting Lender, the Swing Line Lender shall not be required to fund any Swing Line Loan and the Issuing Lenders Lender shall not be required to issue, extend, amend or increase any Letter of Credit, unless the applicable Issuing Lender is satisfied it has received assurances satisfactory to it that the related exposure will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Lenders will cover the related exposure and/or cash collateral Cash Collateral will be provided by the Borrowers in accordance with this Section 2.18(c)Borrower, and participating interests in any such newly issued, extended made Swing Line Loan or any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.18(c)(isubsection 4.21(c)(i) (and such Defaulting Lenders Lender shall not participate therein); and
(e) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.16(d) but excluding Section 2.17(b)) shall, in lieu of being distributed to such Defaulting Lender, 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 Lender to the Administrative Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to any Issuing Lender, (iii) third, if so determined by the Administrative Agent or requested by an Issuing Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in any Letter of Credit, (iv) fourth, to the funding of any Loan in respect of which such Defaulting Lender 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 Borrower Representative, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders or an Issuing Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender or such Issuing Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, (vii) seventh, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, and (viii) eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is (x) a prepayment of the principal amount of any Loans or reimbursement obligations in respect of LC Disbursements for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 3.02 are satisfied, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Lender. In the event that the Administrative Agent, the Company Borrower, the Swing line Lender and the Issuing Lenders agree Lender each agrees that a Defaulting Lender has adequately remedied all matters that caused such Revolving Lender to be a Defaulting Lender, then the LC Swing Line Exposure and L/C Exposure of the Revolving Lenders shall be readjusted to reflect the inclusion of such Defaulting Revolving Lender’s Revolving Credit Commitment and on such date such Defaulting Revolving Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swing Line Loans) as the Administrative Agent shall determine may be necessary in order for such Defaulting Revolving Lender to hold such Revolving Loans in accordance with its Applicable Revolving Credit Commitment Percentage.
Appears in 3 contracts
Sources: Credit Agreement (Cumulus Media Inc), First Lien Credit Agreement (Cumulus Media Inc), First Lien Credit Agreement (Cumulus Media Inc)
Defaulting Lender. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) commitment fees Fees shall cease to accrue on the unfunded portion of the Revolving Credit Commitment of such Defaulting Lender pursuant to Section 2.10(a)3.5;
(b) the Revolving Credit Commitment and Revolving Credit The Aggregate Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, all affected Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.02, other than pursuant to Section 10.02(b)(i), 10.02(b)(ii) or 10.02(b)(iii) that directly affects such Lender11.1), provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lender;
(c) if If any LC Swingline Exposure or L/C Exposure exists at the time such a Revolving Lender becomes a Defaulting Lender then:
(i) all or any part of such LC Swingline Exposure and L/C Exposure shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s LC Swingline Exposure and L/C Exposure does not exceed the total of all non-Defaulting Lenders’ Revolving Credit Commitments and (y) the conditions set forth in Section 5.02 6.2 are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Company Borrower shall within one Business Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize such Defaulting Lender’s LC L/C Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(i) 9 for so long as such LC L/C Exposure is outstanding;
(iii) if the Company Borrower cash collateralizes any portion of such Defaulting Lender’s LC L/C Exposure pursuant to this Section 2.18(c4.16(c), the Company Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.10(b) Section3.9 with respect to such Defaulting Lender’s LC L/C Exposure during the period such Defaulting Lender’s LC L/C Exposure is cash collateralized;
(iv) if the LC L/C Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.18(c4.16(c), then the fees payable to the Lenders pursuant to Sections 2.10(a) Section3.5 and 2.10(b) Section 3.9 shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; or
(v) if any Defaulting Lender’s LC L/C Exposure is neither cash collateralized nor reallocated pursuant to this Section 2.18(c4.16(c), then, without prejudice to any rights or remedies of any the Issuing Lender or any Lender hereunder, all commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.10(b) 3.9 with respect to such Defaulting Lender’s LC L/C Exposure shall be payable to the applicable Issuing Lender(s) Lender until such LC L/C Exposure is cash collateralized and/or reallocated;
(d) so long as any Revolving Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Lenders Lender shall not be required to issue, extend, amend or increase any Letter of Credit, unless the applicable Issuing Lender it is satisfied that the related exposure will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers in accordance with this Section 2.18(c), and participating interests in any such newly issued, extended or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with this Section 2.18(c)(i4.16(c)(i) (and Defaulting Lenders shall not participate thereinand/or cash collateral will be provided by the Borrower in accordance with this Section 4.16(c); and
(e) so long as any Lender is a Defaulting Lender, any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.16(d) 4.8 but excluding Section 2.17(b)4.13) shall, in lieu of being distributed to such Defaulting Lender, 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 Lender to the Administrative Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to any the Issuing LenderLender or Swingline Lender hereunder, (iii) third, if so determined by such Defaulting Lender is a Revolving Lender and the Administrative Agent so determines or is requested by an Issuing Lender or Swingline Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender in respect of any existing or future participating interest in any Swingline Loan or Letter of Credit, (iv) fourth, to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (v) fifth, if so determined by such Defaulting Lender is a Revolving Lender and the Administrative Agent and the Borrower Representativeso determine, held in such account as cash collateral for future funding obligations of the Defaulting Lender in respect of any Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders or an Issuing Lender or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender or such Issuing Lender or Swingline Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, (vii) seventh, to the payment of any amounts owing to the Borrowers Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, and (viii) eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such Defaulting Lender is a Revolving Lender and such payment is (x) a prepayment of the principal amount of any Loans or reimbursement obligations in respect of LC L/C Disbursements for which a such Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 3.02 6.2 are satisfied, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any such Defaulting Lender. In the event that the Administrative Agent, the Company Borrower, the Issuing Lender and the Issuing Lenders agree Swingline Lender (as applicable) each agrees that a Defaulting Lender which is a Revolving Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the LC Swingline Exposure and L/C Exposure of the Lenders shall be readjusted to reflect the inclusion of such Defaulting Lender’s Revolving Credit Commitment and on such date such Defaulting Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Defaulting Lender to hold such Loans in accordance with its Applicable Percentage.
Appears in 3 contracts
Sources: Credit Agreement (Henry Schein Inc), Credit Agreement (Henry Schein Inc), Credit Agreement (Henry Schein Inc)
Defaulting Lender. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion of the Revolving Credit Commitment of such Defaulting Lender pursuant to Section 2.10(a)Sections 2.6 and 3.3;
(b) the Revolving Credit Commitment and the Revolving Extension of Credit Exposure of such Defaulting Lender shall not be included in determining whether all the Lenders, all affected the Required Lenders or the Required Supermajority Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.02, other than pursuant to Section 10.02(b)(i), 10.02(b)(ii) or 10.02(b)(iii) that directly affects such Lender10.1), provided that that, any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lender;
(c) if (i) any LC Exposure Swing Line Loan exists or (ii) any Letter of Credit is outstanding, at the time such a Lender becomes a Defaulting Lender then:
(i) all or any part of such LC Defaulting Lender’s L/C Exposure and Swing Line Exposure shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages Revolving Credit Percentage (calculated without regard to such Defaulting Lender’s Revolving Credit Commitment) but only to the extent that (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s LC Exposure does not exceed the total of all non-Defaulting Lenders’ Revolving Credit Commitments and (y) the conditions set forth in Section 5.02 5.2 are satisfied at such time;time and (y) after giving effect to such reallocation, the Revolving Extension of Credit of any non-Defaulting Lender shall not exceed such non-Defaulting Lender’s Revolving Credit Commitment; and
(ii) if the reallocation described in clause (iSection 2.23(c)(i) above cannot, or can only partially, be effected, the Company Borrower shall within one Business Day following notice by the Administrative Agent cash collateralize prepay such Defaulting Lender’s LC L/C Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(i) for so long as such LC Exposure is outstanding;
(iii) if the Company cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to this Section 2.18(c), the Company shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.10(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.18(c), then the fees payable to the Lenders pursuant to Sections 2.10(a) and 2.10(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; or
(v) if any Defaulting Lender’s LC Exposure is neither cash collateralized nor reallocated pursuant to this Section 2.18(c), then, without prejudice to any rights or remedies of any Issuing Lender or any Lender hereunder, all commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Swing Line Exposure) and letter of credit fees payable under Section 2.10(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Lender(s) until such LC Exposure is cash collateralized and/or reallocated;
(d) so long as any Lender is a Defaulting Lender, the Issuing Lenders Swing Line Lender shall not be required to issue, extend, amend or increase fund any Letter of CreditSwing Line Loan, unless the applicable Issuing Lender it is satisfied that the related exposure will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers in accordance with this Section 2.18(c)Lenders, and participating interests in any such newly issuedmade Swing Line Loan shall be allocated among non-Defaulting Lenders;
(e) so long as any Lender is a Defaulting Lender, extended or increased the Issuing Lender shall not be required to issue any Letter of Credit, unless it is satisfied that the related exposure will be covered by the Revolving Credit Commitments of the non-Defaulting Lenders, and participating interests in any newly issued Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.18(c)(i) (and Defaulting Lenders shall not participate therein); andLenders;
(ef) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.16(d) but excluding Section 2.17(b)2.6 or 3.3) shall, in lieu of being distributed to such Defaulting Lender, be retained by the Administrative Agent in a segregated account and, subject to any applicable requirements Requirements of lawLaw, 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 Lender to the Administrative Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to Lender, any Issuing LenderLender or Swing Line Lender hereunder, (iii) third, if so determined by the Administrative Agent or requested by an Issuing Lender or the Swing Line Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender in respect of any existing or future participating interest in any Swing Line Loan or Letter of Credit, (iv) fourth, to the funding of any Loan or the purchase of any participation under any Letter of Credit in respect of which such Defaulting Lender has failed to fund or purchase 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 Borrower RepresentativeBorrower, held in such account as cash collateral for future funding obligations of the Defaulting Lender in respect of any Loans or the purchase of any participation under any Letter of Credit under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders Lenders, any Issuing Lender or an Issuing the Swing Line Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, any Issuing Lender or such Issuing the Swing Line Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, (vii) seventh, to the payment of any amounts owing to the Borrowers Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, and (viii) eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided , provided, with respect to this clause (viii), that if such payment is (x) a prepayment of the principal amount of any Loans or reimbursement obligations in respect of LC Disbursements for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 3.02 2.9 are satisfied, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, made by all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations Reimbursement Obligations owed to, any Defaulting Lender. In ; and
(g) for purposes of computing the event that amount of the Administrative Agentobligation of each non-Defaulting Lender to acquire, refinance or fund participations in Letters of Credit pursuant to Section 3.1, the Company and the Issuing Lenders agree that a “Revolving Credit Percentage” of each non-Defaulting Lender has adequately remedied all matters shall be computed without giving effect to the Revolving Credit Commitment of that caused Defaulting Lender; provided that, (i) each such reallocation shall be given effect only if, at the date the applicable Lender to be becomes a Defaulting Lender, then no Default or Event of Default exists; and (ii) the LC Exposure aggregate obligation of each non-Defaulting Lender to acquire, refinance or fund participations in Letters of Credit shall not exceed the Lenders shall be readjusted to reflect positive difference, if any, of (1) the inclusion of such Defaulting Lender’s Revolving Credit Commitment and on such date such of that non-Defaulting Lender shall purchase at par minus (2) the aggregate Revolving Extensions of Credit of such of the Loans of the other Lenders as the Administrative Agent shall determine may be necessary in order for such non-Defaulting Lender to hold such Loans in accordance with its Applicable PercentageLender.
Appears in 2 contracts
Sources: Credit Agreement (Hudson Pacific Properties, Inc.), Credit Agreement (Hudson Pacific Properties, Inc.)
Defaulting Lender. Notwithstanding At any provision of this Agreement to the contrary, if any time when a Lender becomes is then a Defaulting Lender, then the following provisions shall apply for Lender and so long as such Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion of the Revolving Credit Commitment of such Defaulting Lender pursuant to Section 2.10(a);
(b) the Revolving Credit Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, all affected Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.02, other than pursuant to Section 10.02(b)(i), 10.02(b)(ii) or 10.02(b)(iii) that directly affects such Lender), provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lender;
(c) if any LC Exposure no Default exists at such time, the time such Lender becomes a Defaulting Lender then:
(i) all or any part of such LC Exposure shall be reallocated among Borrower, at the non-Defaulting Lenders in accordance with their respective Applicable Percentages but only Borrower’s election may elect to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus terminate such Defaulting Lender’s LC Exposure does not exceed Revolving Commitment hereunder; provided that (A) such termination must be of the total of all non-Defaulting Lenders’ Revolving Credit Commitments and (y) the conditions set forth in Section 5.02 are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Company shall within one Business Day following notice by the Administrative Agent cash collateralize such Defaulting Lender’s LC Exposure entire Revolving Commitment, (after giving effect to any partial reallocation pursuant to clause (iB) above) in accordance with the procedures set forth in Section 2.04(i) for so long as such LC Exposure is outstanding;
(iii) if Borrower shall pay all amounts owed by the Company cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to this Section 2.18(c), the Company shall not be required to pay any fees Borrower to such Defaulting Lender pursuant in such Lender’s capacity as a Revolving Lender under this Agreement and under the other Credit Documents (including principal of and interest on the Revolving Advances owed to such Defaulting Lender, accrued commitment fees (subject to Section 2.10(b2.7(a)), and letter of credit fees but specifically excluding any amounts owing under Section 2.10 as result of such payment of Revolving Advances) and shall deposit with respect the Administrative Agent into the Cash Collateral Account cash collateral in the amount equal to such Defaulting Lender’s LC Exposure during ratable share of the period such Letter of Credit Exposure, (C) a Defaulting Lender’s LC Exposure is cash collateralized;
(ivRevolving Commitment may be terminated by the Borrower under this Section 2.1(c)(iii) if and only if at such time, the LC Exposure Borrower has elected, or is then electing, to terminate the Revolving Commitments of all then existing Defaulting Lenders. Upon written notice to the Defaulting Lender and Administrative Agent of the non-Borrower’s election to terminate a Defaulting Lenders is reallocated Lender’s Revolving Commitment pursuant to this Section 2.18(c), then the fees payable to the Lenders pursuant to Sections 2.10(aclause (iii) and 2.10(bthe payment and deposit of amounts required to be made by the Borrower under clause (B) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; or
above, (vA) if any Defaulting Lender’s LC Exposure is neither cash collateralized nor reallocated pursuant to this Section 2.18(c), then, without prejudice to any rights or remedies of any Issuing Lender or any Lender hereunder, all commitment fees that otherwise would have been payable to such Defaulting Lender (solely shall cease to be a “Revolving Lender” hereunder for all purposes except that such Revolving Lender’s rights as a Revolving Lender under Sections 2.11, 2.13, 8.5 and 9.2 and such Revolving Lender’s obligations under Section 8.5 and all other provisions in this Agreement which expressly survive, in each case, shall continue with respect to the portion of such Defaulting events and occurrences occurring before or concurrently with its ceasing to be a “Revolving Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.10(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Lender(s) until such LC Exposure is cash collateralized and/or reallocated;
(d) so long as any Lender is a Defaulting Lender, the Issuing Lenders shall not be required to issue, extend, amend or increase any Letter of Credit, unless the applicable Issuing Lender is satisfied that the related exposure will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers in accordance with this Section 2.18(c), and participating interests in any such newly issued, extended or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.18(c)(i) (and Defaulting Lenders shall not participate therein); and
(e) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.16(d) but excluding Section 2.17(b)) shall, in lieu of being distributed to such Defaulting Lender, 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 Lender to the Administrative Agent ” hereunder, (iiB) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to any Issuing Lender, (iii) third, if so determined by the Administrative Agent or requested by an Issuing Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in any Letter of Credit, (iv) fourth, to the funding of any Loan in respect of which such Defaulting Lender 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 Borrower Representative, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders or an Issuing Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender or such Issuing Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, (vii) seventh, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, and (viii) eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is (x) a prepayment of the principal amount of any Loans or reimbursement obligations in respect of LC Disbursements for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 3.02 are satisfied, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Lender. In the event that the Administrative Agent, the Company and the Issuing Lenders agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Defaulting Lender’s Revolving Credit Commitment shall be deemed terminated, and on such date (C) such Defaulting Lender shall purchase at par such be relieved of its obligations hereunder as a “Revolving Lender” other than as described in clause (A) above. Notwithstanding anything herein to the Loans contrary, the termination of the other Lenders commitments, rights and obligations provided for in this clause (iii) shall not affect rights and obligations that a Lender may have in its capacity as the Administrative Agent shall determine may be necessary in order for such Defaulting Lender to hold such Loans in accordance with its Applicable Percentagea Term Lender.
Appears in 2 contracts
Sources: Credit Agreement (Flotek Industries Inc/Cn/), Credit Agreement (Flotek Industries Inc/Cn/)
Defaulting Lender. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) commitment fees Commitment Fees shall cease to accrue on the unfunded portion of the Revolving Credit Available Unused Commitment of such Defaulting Lender pursuant to Section 2.10(a)Lender;
(b) the Any Revolving Credit Facility Commitment and or any Revolving Credit Exposure Facility Loan of such Defaulting Lender shall not be included in determining whether all the Required Lenders, all affected Required Tranche A Lenders, Required Tranche B Lenders or the Required Super Majority Lenders have taken or may take any action hereunder (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 10.029.08); provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other than pursuant to Section 10.02(b)(i), 10.02(b)(ii) or 10.02(b)(iii) that directly affects such Lender), provided that any waiver, amendment or modification requiring the consent of all Lenders such Lender under Section 9.04(a)(i) or each affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require subclauses (i), through (ix) of the consent of such Defaulting Lenderfirst proviso to Section 9.08(b);
(c) if If any LC Swingline Exposure or Revolving L/C Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and Revolving L/C Exposure of such LC Exposure Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Revolving Facility Percentages of Tranche A Revolving Facility Commitments but only to the extent (x) the sum of all non-Defaulting Lenders’ Tranche A Revolving Credit Exposures Facility Exposure plus such Defaulting Lender’s LC Swingline Exposure and Revolving L/C Exposure does not exceed the total of all non-Defaulting Lenders’ Tranche A Revolving Credit Commitments and (y) the conditions set forth in Section 5.02 are satisfied at such timeFacility Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Company applicable Borrower shall within one (1) Business Day following notice by the Administrative Agent cash collateralize (x) first, prepay such Swingline Exposure and (y) second, Cash Collateralize for the benefit of the applicable Issuing Bank only such Borrower’s obligations corresponding to such Defaulting Lender’s LC Revolving L/C Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(i2.05(j) for so long as such LC Revolving L/C Exposure is outstanding;
(iii) if the Company cash collateralizes any Borrower Cash Collateralizes any portion of such Defaulting Lender’s LC Revolving L/C Exposure pursuant to this Section 2.18(c)subclause (ii) above, the Company such Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.10(b) 2.12 with respect to such Defaulting Lender’s LC Revolving L/C Exposure during the period such Defaulting Lender’s LC Revolving L/C Exposure is cash collateralizedCash Collateralized;
(iv) if the LC Revolving L/C Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.18(c)subclause (i) above, then the fees payable to the Lenders pursuant to Sections 2.10(a) and 2.10(b) Section 2.12 shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable PercentagesRevolving Facility Percentages with respect to Tranche A Revolving Facility Commitments; orand
(v) if all or any portion of such Defaulting Lender’s LC Revolving L/C Exposure is neither cash collateralized reallocated nor reallocated Cash Collateralized pursuant to this Section 2.18(c)subclause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Lender Bank or any other Lender hereunder, all commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.10(b) 2.12 with respect to such Defaulting Lender’s LC Revolving L/C Exposure shall be payable to such Issuing Bank until and to the applicable Issuing Lender(s) until extent that such LC Revolving L/C Exposure is cash collateralized reallocated and/or reallocated;Cash Collateralized; and
(d) so So long as any such Lender is a Defaulting Lender, the Issuing Lenders Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, extend, amend or increase any Letter of Credit, unless the applicable Issuing Lender it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Revolving L/C Exposure will be 100% covered by the Tranche A Revolving Credit Facility Commitments of the non-Defaulting Lenders and/or cash collateral Cash Collateral will be provided by the Borrowers Borrower in accordance with this Section 2.18(c2.21(c), and participating interests in any such newly issued, extended made Swingline Loan or any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.18(c)(i2.21(c)(i) (and such Defaulting Lenders Lender shall not participate therein); and.
(e) any amount payable to such In the event that the Administrative Agent, the Borrowers, the Swingline Lender and the Issuing Banks each agrees that a Defaulting Lender hereunder has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and Revolving L/C Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Revolving Facility Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders (whether on account other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Revolving Facility Percentage.
(f) Any payment of principal, interest, fees or otherwise and including any amount that would otherwise be payable to other amounts received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, following an Event of Default or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 2.16(d) but excluding Section 2.17(b)) shall, in lieu of being distributed to such Defaulting Lender, be retained by the Administrative Agent in a segregated account and, subject to any applicable requirements of law, 9.06 shall be applied at such time or times as may be determined by the Administrative Agent (i) as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder, (ii) ; second, pro rata, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Issuing Lender, (iii) Bank or the Swingline Lender hereunder; third, if so determined by to Cash Collateralize the Administrative Agent or requested by an Issuing Lender, to be held in Revolving L/C Exposure of such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in any Letter of Credit, (iv) accordance with Section 2.05(j); fourth, to the funding of any Loan in respect of which such Defaulting Lender 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 Borrower Representative, to be held in a deposit account and released pro rata in order to (x) satisfy such account as cash collateral for Defaulting Lender’s potential future funding obligations of the Defaulting Lender of any with respect to Loans under this Agreement, and (viy) Cash Collateralize the future Revolving L/C Exposure of such Defaulting Lender with respect to future Letters of Credit issued under this Agreement, in accordance with Section 2.05(j); sixth, to the payment of any amounts owing to the Lenders Lenders, the Issuing Banks or an Issuing the Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender Lender, the Issuing Banks or such Issuing the Swingline Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, (vii) seventhso long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrowers applicable Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, ; and (viii) eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is (x) a prepayment of the principal amount of any Loans . Any payments, prepayments or reimbursement obligations in respect of LC Disbursements for which other amounts paid or payable to a Defaulting Lender has funded its participation obligations and that are applied (yor held) made at a time when the conditions set forth in Section 3.02 are satisfied, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations pay amounts owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Lender. In the event that the Administrative Agent, the Company and the Issuing Lenders agree that by a Defaulting Lender has adequately remedied all matters that caused or to post Cash Collateral pursuant to this Section 2.21 shall be deemed paid to and redirected by such Lender to be a Defaulting Lender, then the LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Defaulting Lender’s Revolving Credit Commitment and on such date such Defaulting each Lender shall purchase at par such of the Loans of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Defaulting Lender to hold such Loans in accordance with its Applicable Percentageirrevocably consents hereto.
Appears in 2 contracts
Sources: Amendment Agreement (Momentive Performance Materials Inc.), Senior Secured Debtor in Possession and Exit Asset Based Revolving Credit Agreement (Momentive Performance Materials Inc.)
Defaulting Lender. Notwithstanding At any provision of this Agreement to the contrary, if any time when a Lender becomes is then a Defaulting Lender, then the following provisions shall apply for so long as Applicable Borrower, at such Lender is a Defaulting Lender:
(a) commitment fees shall cease Borrower’s election, may elect to accrue on the unfunded portion of the Revolving Credit Commitment of such Defaulting Lender pursuant to Section 2.10(a);
(b) the Revolving Credit Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, all affected Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.02, other than pursuant to Section 10.02(b)(i), 10.02(b)(ii) or 10.02(b)(iii) that directly affects such Lender), provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lender;
(c) if any LC Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of such LC Exposure shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus terminate such Defaulting Lender’s LC Exposure does not exceed the total Commitment hereunder; provided that (A) such termination must be of all non-Defaulting Lenders’ Revolving Credit Commitments and (y) of the conditions set forth in Section 5.02 are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Company shall within one Business Day following notice by the Administrative Agent cash collateralize such Defaulting Lender’s LC Exposure Commitments, (after giving effect to any partial reallocation pursuant to clause (iB) above) in accordance with the procedures set forth in Section 2.04(i) for so long as such LC Exposure is outstanding;
(iii) if Applicable Borrower shall pay all amounts owed by the Company cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to this Section 2.18(c), the Company shall not be required to pay any fees Applicable Borrower to such Defaulting Lender pursuant in such Lender’s capacity as a Lender under this Agreement and under the other Credit Documents (including principal of and interest on the Advances owed to such Defaulting Lender, accrued Commitment Fees (subject to Section 2.10(b2.18(a)(iii)), and letter of credit fees (subject to Section 2.18(a)(iii) but specifically excluding any amounts owing under Section 2.12 as result of such payment of such Advances) and shall deposit with respect the Applicable Administrative Agent into the Cash Collateral Account cash collateral in the amount equal to such Defaulting Lender’s LC ratable share of the Dollar Equivalent of the Letter of Credit Exposure during (including any such portion thereof that has been reallocated pursuant to Section 2.18), (C) a Defaulting Lender’s Commitments may be terminated by the period Applicable Borrower under this Section 2.1(d) if and only if at such time, such Borrower has elected, or is then electing, to terminate the Commitments of all then existing Defaulting Lenders, and (D) no Default has occurred and is continuing at the time of such election and termination. Upon written notice to the Defaulting Lender and Applicable Administrative Agent of the Applicable Borrower’s election to terminate a Defaulting Lender’s Commitments pursuant to this clause (iii) and the payment and deposit of amounts required to be made by the Applicable Borrower under clause (B) and (C) above, (1) such Defaulting Lender shall cease to be a “Lender” hereunder for all purposes except that such Lender’s rights and obligations as a Lender under Section 2.11, Section 2.13, Section 2.15, Section 8.3 and Section 9.1 shall continue with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Lender” hereunder, (2) such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.18(c), then the fees payable to the Lenders pursuant to Sections 2.10(a) and 2.10(b) Commitments shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; or
(v) if any Defaulting Lender’s LC Exposure is neither cash collateralized nor reallocated pursuant to this Section 2.18(c), then, without prejudice to any rights or remedies of any Issuing Lender or any Lender hereunder, all commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.10(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Lender(s) until such LC Exposure is cash collateralized and/or reallocated;
(d) so long as any Lender is a Defaulting Lender, the Issuing Lenders shall not be required to issue, extend, amend or increase any Letter of Credit, unless the applicable Issuing Lender is satisfied that the related exposure will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers in accordance with this Section 2.18(c), and participating interests in any such newly issued, extended or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.18(c)(i) (and Defaulting Lenders shall not participate therein); and
(e) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.16(d) but excluding Section 2.17(b)) shall, in lieu of being distributed to such Defaulting Lender, 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 Lender to the Administrative Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to any Issuing Lender, (iii) third, if so determined by the Administrative Agent or requested by an Issuing Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in any Letter of Credit, (iv) fourth, to the funding of any Loan in respect of which such Defaulting Lender 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 Borrower Representative, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders or an Issuing Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender or such Issuing Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, (vii) seventh, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreementdeemed terminated, and (viii3) eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is (x) a prepayment of the principal amount of any Loans or reimbursement obligations in respect of LC Disbursements for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 3.02 are satisfied, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Lender. In the event that the Administrative Agent, the Company and the Issuing Lenders agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Defaulting Lender’s Revolving Credit Commitment and on such date such Defaulting Lender shall purchase at par be relieved of its obligations hereunder as a “Lender” except as to its obligations under Section 8.3 and Section 9.1 and any other obligations that expressly survive, which obligations shall continue with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Lender” hereunder, provided that, any such termination will not be deemed to be a waiver or release of any claim by the Loans of the other Lenders as Borrowers, the Administrative Agent shall determine Agents, the Swingline Lender, Issuing Lenders or any Lender may be necessary in order for have against such Defaulting Lender to hold such Loans in accordance with its Applicable PercentageLender.
Appears in 2 contracts
Sources: Credit Agreement (Nine Energy Service, Inc.), Credit Agreement (Nine Energy Service, Inc.)
Defaulting Lender. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion of the Revolving Credit any Commitment of such Defaulting Lender pursuant to Section 2.10(a)this Agreement;
(b) the Revolving Credit Commitment Commitments and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, all affected Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 10.029.02); provided, that in the case of an amendment, waiver or other than pursuant to Section 10.02(b)(i), 10.02(b)(ii) or 10.02(b)(iii) that directly affects such Lender), provided that any waiver, amendment or modification requiring the consent of all Lenders or of each Lender affected Lender which affects thereby, the Defaulting Lender’s consent shall be only be required with respect to (i) a proposed increase or extension of such Defaulting Lender differently than other affected Lenders shall require Lender’s Commitments and (ii) a proposed reduction or excuse, or a proposed postponement of the consent scheduled date of payment, of the principal amount of, or interest or fees payable on, any Loans or LC Disbursements as to any such Defaulting Lender;
(c) if any LC Exposure exists at the time such a Lender becomes a Defaulting Lender then:
(i) all or any part of such the LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages but only (x) to the extent (x) the sum of all that such reallocation does not, as to any non-Defaulting Lenders’ Revolving Credit Exposures plus Lender, cause such non-Defaulting Lender’s LC Revolving Exposure does not to exceed the total of all non-Defaulting Lenders’ Revolving Credit Commitments its Commitment and (y) if the conditions condition set forth in Section 5.02 4.03 are satisfied at such that time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Company Borrower shall within one (1) Business Day following notice by the Administrative Agent Agent, cash collateralize for the benefit of the Issuing Bank only the Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(i2.04(j) for so long as such LC Exposure is outstanding;
(iii) if the Company Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to this Section 2.18(c2.20(c), the Company Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.10(b) 2.11 with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.18(c2.20(c), then the fees payable to the Lenders pursuant to Sections 2.10(a) and 2.10(b) Section 2.11 shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; orand
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither cash collateralized nor reallocated pursuant to this Section 2.18(c2.20(c), then, without prejudice to any rights or remedies of any the Issuing Lender Bank or any Lender hereunder, all commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment Commitments that was were utilized by such LC Exposure) Exposure and any applicable letter of credit fees payable under Section 2.10(bfees) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Lender(s) Bank until and to the extent that such LC Exposure is cash collateralized and/or reallocated;; and
(d) so long as any Lender is a Defaulting Lender, the Issuing Lenders Bank shall not be required to issue, extend, amend or increase any Letter of Credit, unless the applicable Issuing Lender it is satisfied that the related exposure and each Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers Borrower in accordance with this Section 2.18(c2.20(c), and participating interests in LC Exposure related to any such newly issued, extended issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.18(c)(i2.20(c)(i) (and Defaulting Lenders shall not participate therein); and
(e) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.16(d) but excluding Section 2.17(b)) shall, in lieu of being distributed to such Defaulting Lender, 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 . If (i) first, a Bankruptcy Event with respect to any Lender Parent shall occur following the payment of any amounts owing by date hereof and for so long as such Defaulting Lender to the Administrative Agent hereunder, event shall continue or (ii) secondthe Issuing Bank has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, pro ratathe Issuing Bank shall not be required to issue, to the payment of any amounts owing by such Defaulting Lender to any Issuing Lender, (iii) third, if so determined by the Administrative Agent amend or requested by an Issuing Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in increase any Letter of Credit, (iv) fourthunless the Issuing Bank shall have entered into arrangements with the Borrower or such Lender, satisfactory to the funding of Issuing Bank to defease any Loan risk to it in respect of which such Defaulting Lender 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 Borrower Representative, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders or an Issuing Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender or such Issuing Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, (vii) seventh, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, and (viii) eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is (x) a prepayment of the principal amount of any Loans or reimbursement obligations in respect of LC Disbursements for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 3.02 are satisfied, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Lenderhereunder. In the event that the Administrative Agent, the Company Borrower and the Issuing Lenders agree Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Defaulting Lender’s Revolving Credit Commitment and on such date such Defaulting Lender shall purchase at par such of the Loans of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Defaulting Lender to hold such Loans in accordance with its Applicable Percentage.
Appears in 2 contracts
Sources: Credit Agreement (Solaris Oilfield Infrastructure, Inc.), Credit Agreement (Solaris Oilfield Infrastructure, Inc.)
Defaulting Lender. Notwithstanding any provision of this Agreement to the contrary, if If any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) commitment fees such Defaulting Lender’s Revolving Commitment and outstanding Revolving Loans shall cease be excluded for purposes of calculating the fee payable to accrue on the unfunded portion Lenders in respect of the Unused Line Fee, and such Defaulting Lender shall not be entitled to receive any Unused Line Fee with respect to such Defaulting Lender’s Revolving Credit Commitment or Revolving Loans (in each case not including any fee in connection with any portion of such Defaulting Lender Lenders Revolving Commitment that has been reallocated to non-Defaulting Lenders pursuant to Section 2.10(a10.21(d) hereof);.
(b) the Revolving Credit Commitment Commitments and Revolving Credit Exposure Loans of such Defaulting Lender shall not be included in determining whether all Lenders, all affected Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.02, other than pursuant to Section 10.02(b)(i10.5), 10.02(b)(ii) or 10.02(b)(iii) that directly affects such Lender), provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lender;.
(c) if any LC Exposure exists at in the time such Lender becomes event a Defaulting Lender then:
(i) all or has defaulted on its obligation to fund any part of such LC Exposure shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s LC Exposure does not exceed the total of all non-Defaulting Lenders’ Revolving Credit Commitments and (y) the conditions set forth in Section 5.02 are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannotLoan, or can only partially, be effected, the Company shall within one Business Day following notice by the Administrative Agent cash collateralize such Defaulting Lender’s LC Exposure (after giving effect to purchase any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(i) for so long as such LC Exposure is outstanding;
(iii) if the Company cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to this Section 2.18(c), the Company shall not be required to pay any fees to such Defaulting Lender participation pursuant to Section 2.10(b) 1.5 hereof, until such time as the Default Excess with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant Lender has been reduced to this Section 2.18(c)zero, then the fees payable to the Lenders pursuant to Sections 2.10(a) and 2.10(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; or
(v) if any Defaulting Lender’s LC Exposure is neither cash collateralized nor reallocated pursuant to this Section 2.18(c), then, without prejudice to any rights prepayments or remedies of any Issuing Lender or any Lender hereunder, all commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.10(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Lender(s) until such LC Exposure is cash collateralized and/or reallocated;
(d) so long as any Lender is a Defaulting Lender, the Issuing Lenders shall not be required to issue, extend, amend or increase any Letter of Credit, unless the applicable Issuing Lender is satisfied that the related exposure will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers in accordance with this Section 2.18(c), and participating interests in any such newly issued, extended or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.18(c)(i) (and Defaulting Lenders shall not participate therein); and
(e) any amount payable to such Defaulting Lender hereunder (whether repayments on account of principalthe Revolving Loans or participations pursuant to Section 1.5, interest, fees or otherwise and including any amount that in each case to the extent they would be otherwise be payable to such Defaulting Lender pursuant to Section 2.16(d) but excluding Section 2.17(b)) shall, in lieu of being distributed to such Defaulting Lender, be retained by the Administrative Agent in a segregated account and, subject to any applicable requirements of law, shall 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 Lender to the Administrative Agent hereunder, (ii) ; second, pro rata, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any the Issuing Lender, (iii) Bank or Letter of Credit guarantor/indemnitor hereunder; third, if so determined by the Administrative Agent or requested by an Issuing Lender, to be held in such account as provide cash collateral for future funding obligations in the amount of 103% of the Defaulting Lender of any participating interest in any Issuing Bank’s (or the Letter of CreditCredit guarantor/indemnitor’s, as the case may be) Fronting Exposure with respect to such Defaulting Lender; fourth, as the Borrowers may request (iv) fourthso long as no Default or Event of Default exists), to the funding of any Loan in respect of which such Defaulting Lender 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 Borrower RepresentativeBorrowers, to be held in a deposit account and released pro rata in order to (x) satisfy such account as cash collateral for Defaulting Lender’s potential future funding obligations of the Defaulting Lender of any with respect to Loans under this Agreement and (y) provide cash collateral in the amount of 103% of the Issuing Bank’s (or the Letter of Credit guarantor/indemnitor’s, as the case may be) future Fronting Exposure with respect to such Defaulting Lender with respect to future Letters of Credit issued under this Agreement, (vi) ; sixth, to the payment of any amounts owing to the Lenders Lenders, the Issuing Bank or an Issuing Lender the Letter of Credit guarantor/indemnitor as a result of any judgment of a court of competent jurisdiction obtained by any Lender Lender, the Issuing Bank or such Issuing Lender the Letter of Credit guarantor/indemnitor against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, (vii) seventhso long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, ; and (viii) eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that provided, that, if (x) such payment is (x) a prepayment payment of the principal amount of any Loans or reimbursement obligations Letter of Credit Balance in respect of LC Disbursements for which a such Defaulting Lender has not fully funded its participation obligations appropriate share and (y) such Loans or Letter of Credit Balance were made at a time when the conditions set forth in Section 3.02 are satisfied1.6 were satisfied or waived, such payment shall be applied solely to prepay pay the Loans of, and reimbursement obligations Letter of Credit Balance owed to, all non-Defaulting Lenders on a pro rata basis prior to being applied to the prepayment payment of any LoansLoans of, or reimbursement obligations Letter of Credit Balance owed to, any such Defaulting Lender. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 10.21(c) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
(d) If any Letter of Credit Balance exists at the time a Lender becomes a Defaulting Lender then:
(i) so long as no Default or Event of Default then exists, all or any part of such Letter of Credit Balance shall be reallocated among the non-Defaulting Lenders in accordance with their respective Pro Rata Shares of the total Revolving Commitments (calculated without regard to such Defaulting Lender’s Revolving Commitments), provided that no Lender’s Revolving Exposure shall exceed its Revolving Commitment;
(ii) if the reallocation described in paragraph (i) above cannot, or can only partially, be effected, the Borrowers shall within one (1) Business Day following notice by Agent, cash collateralize such Defaulting Lender’s Pro Rata Share of Letter of Credit Balance (after giving effect to any partial reallocation pursuant to paragraph (i) above) for so long as any such Letter of Credit Balance remains are outstanding;
(iii) if the Borrowers cash collateralize any portion of such Defaulting Lender’s Pro Rata Share of the Letter of Credit Balance pursuant to this Section 10.21(d), the Borrowers shall not be required to pay any Letter of Credit Fees to such Defaulting Lender with respect to the portion of such Defaulting Lender’s Pro Rata Share of the Letter of Credit Balance which have been cash collateralized (and the Defaulting Lender shall not be entitled to receive any such fees);
(iv) if the Defaulting ▇▇▇▇▇▇’s Pro Rata Share of the Letter of Credit Balance is reallocated pursuant to this Section 10.21(d), then the Letter of Credit Fees payable to the non-Defaulting Lenders shall be adjusted accordingly; and
(v) if any Defaulting ▇▇▇▇▇▇’s Pro Rata Share of the Letter of Credit Balance is not cash collateralized or reallocated pursuant to this Section 10.21(d), then without prejudice to any rights or remedies of the applicable Letter of Credit guarantor/indemnitor or Issuing Bank hereunder, all Letter of Credit Fees payable hereunder with respect to such Defaulting ▇▇▇▇▇▇’s Pro Rata Share of the Letter of Credit Balance shall be payable to the Issuing Bank or if applicable, the Letter of Credit guarantor/indemnitor.
(e) So long as any Lender is a Defaulting Lender, no Issuing Bank or Letter of Credit guarantor/indemnitor shall be required to issue, extend or increase any Letter of Credit or Letter of Credit Guaranty, in each case unless it is reasonably satisfied that the related exposure will be 100% covered by the Revolving Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers, and participating interests in any such newly issued, extended or increased Letter of Credit or Letter of Credit guaranty/indemnification shall be allocated among non-Defaulting Lenders in a manner consistent with Section 10.21(d) (and Defaulting Lenders shall not participate therein).
(f) No reallocation permitted pursuant to Section 10.21(d) shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that ▇▇▇▇▇▇ having become a Defaulting Lender, including any claim of a non-Defaulting Lender as a result of such non-Defaulting Lender’s increased exposure following such reallocation.
(g) In the event that the Administrative Agent, the Company Issuing Bank and the Issuing Lenders agree Letter of Credit guarantor/indemnitor each agrees in writing that a Defaulting Lender has adequately remedied all matters that which caused such Lender to be become a Defaulting Lender, then the LC Exposure Pro Rata Shares of the Letter of Credit Balance of the Lenders shall be readjusted to reflect the inclusion of such Defaulting Lender▇▇▇▇▇▇’s Revolving Credit Commitment and on such date such Defaulting Lender shall purchase at par such of the Revolving Loans of the other Lenders or participations in the Revolving Loans as the Administrative Agent shall determine may be necessary in order for such Defaulting Lender to hold such Revolving Loans or participations in accordance with its Applicable PercentagePro Rata Share; provided, that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers while that Lender was a Defaulting Lender; provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that ▇▇▇▇▇▇ having been a Defaulting Lender.
(h) The rights and remedies with respect to a Defaulting Lender under this Section 10.21 are in addition to any other rights and remedies which the Borrowers, Agent, the Issuing Bank or the Letter of Credit guarantor/indemnitor, as applicable, may have against such Defaulting Lender.
Appears in 2 contracts
Sources: Loan and Security Agreement (SkyWater Technology, Inc), Loan and Security Agreement (SkyWater Technology, Inc)
Defaulting Lender. Notwithstanding At any provision of this Agreement to the contrary, if any time when a Lender becomes is then a Defaulting Lender, then the following provisions shall apply for so long as Borrower, at the Borrower’s election, may elect to terminate such Lender is a Defaulting Lender:
’s Commitment hereunder; provided that (aA) commitment fees shall cease to accrue on the unfunded portion such termination must be of the Revolving Credit Defaulting Lender’s entire Commitment, (B) the Non-Defaulting Lenders shall each have the option to accept an assignment of the Defaulting Lender’s Commitment pursuant to Section 2.13 in lieu of a termination of Commitments pursuant to this Section 2.1(c)(ii), (C) to the extent that the Non-Defaulting Lenders do not take an assignment as provided in the immediately preceding clause (B), the Borrower shall pay all amounts owed by the Borrower to such Defaulting Lender pursuant to Section 2.10(a);
(b) the Revolving Credit Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, all affected Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.02, other than pursuant to Section 10.02(b)(i), 10.02(b)(ii) or 10.02(b)(iii) that directly affects such Lender), provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lender;
’s capacity as a Lender under this Agreement and under the other Credit Documents (c) if including principal of and interest on the Revolving Advances owed to such Defaulting Lender, accrued Commitment Fees (subject to Section 2.6(a)), and letter of credit fees but specifically excluding any LC Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) all or any part amounts owing under Section 2.9 as result of such LC payment of such Advances) and shall deposit with the Administrative Agent into the Cash Collateral Account cash collateral in the amount equal to such Defaulting Lender’s ratable share of the Letter of Credit Exposure shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages (but only to the extent such Letter of Credit Exposure that has not been reallocated pursuant to Section 2.14), and (xC) a Defaulting Lender’s Commitment may be terminated by the sum Borrower under this Section 2.1(c)(ii) if and only if at such time, the Borrower has elected, or is then electing, to terminate the Commitments of all non-then existing Defaulting Lenders’ Revolving Credit Exposures plus . Upon written notice to the Defaulting Lender and Administrative Agent of the Borrower’s election to terminate a Defaulting Lender’s Commitment pursuant to this clause (iii) and the payment and deposit of amounts required to be made by the Borrower under clause (B) and (C) above, (1) such Defaulting Lender shall cease to be a “Lender” hereunder for all purposes except that such Lender’s rights and obligations as a Lender under Sections 2.10, 2.12, 8.5 and 9.2 shall continue with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Lender”, as applicable, hereunder, (2) such Defaulting Lender’s LC Exposure does not exceed the total of all non-Defaulting Lenders’ Revolving Credit Commitments Commitment shall be deemed terminated, and (y3) the conditions set forth in Section 5.02 are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Company shall within one Business Day following notice by the Administrative Agent cash collateralize such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(i) for so long as such LC Exposure is outstanding;
(iii) if the Company cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to this Section 2.18(c), the Company shall not be required to pay any fees to such Defaulting Lender pursuant shall be relieved of its obligations hereunder as a “Lender” except as to its obligations under Section 2.10(b) 8.5 shall continue with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Lender”, as applicable, hereunder, provided that, any such Defaulting termination will not be deemed to be a waiver or release of any claim that Borrower, the Administrative Agent, the Swing Line Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.18(c), then the fees payable to the Lenders pursuant to Sections 2.10(a) and 2.10(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; or
(v) if any Defaulting Lender’s LC Exposure is neither cash collateralized nor reallocated pursuant to this Section 2.18(c), then, without prejudice to any rights or remedies of any Issuing Lender or any Lender hereunder, all commitment fees that otherwise would may have been payable to such Defaulting Lender (solely with respect to the portion of against such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.10(b) with respect to such Defaulting Lender’s LC Exposure shall be payable . Notwithstanding anything herein to the applicable Issuing Lender(s) until such LC Exposure is cash collateralized and/or reallocated;
(d) so long as any Lender is a Defaulting Lendercontrary, the Issuing Lenders shall not be required to issue, extend, amend or increase any Letter of Credit, unless the applicable Issuing Lender is satisfied that the related exposure will be 100% covered by the Revolving Credit Commitments of the nonNon-Defaulting Lenders and/or cash collateral will Lenders’ option to take an assignment as provided in Section 2.1(c)(ii)(B) may be provided exercised by the Borrowers in accordance with this Section 2.18(c), and participating interests in any such newly issued, extended or increased Letter of Credit shall be allocated among nona Non-Defaulting Lenders Lender in a manner consistent with Section 2.18(c)(i) (its sole and Defaulting Lenders absolute discretion and nothing contained herein shall not participate therein); and
(e) obligate any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.16(d) but excluding Section 2.17(b)) shall, in lieu of being distributed to such Defaulting Lender, 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 Non-Defaulting Lender to the Administrative Agent hereunder, (ii) second, pro rata, to the payment of take any amounts owing by such Defaulting Lender to any Issuing Lender, (iii) third, if so determined by the Administrative Agent or requested by an Issuing Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in any Letter of Credit, (iv) fourth, to the funding of any Loan in respect of which such Defaulting Lender 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 Borrower Representative, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders or an Issuing Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender or such Issuing Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, (vii) seventh, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, and (viii) eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is (x) a prepayment of the principal amount of any Loans or reimbursement obligations in respect of LC Disbursements for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 3.02 are satisfied, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Lender. In the event that the Administrative Agent, the Company and the Issuing Lenders agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Defaulting Lender’s Revolving Credit Commitment and on such date such Defaulting Lender shall purchase at par such of the Loans of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Defaulting Lender to hold such Loans in accordance with its Applicable Percentageassignment.
Appears in 2 contracts
Sources: Master Assignment, Agreement, Amendment No. 1 and Waiver to Credit Agreement and Related Documents (Heckmann Corp), Credit Agreement (Heckmann Corp)
Defaulting Lender. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) commitment fees The Commitment Fee shall cease to accrue on the unfunded portion of the Revolving Credit Commitment of such Defaulting Lender pursuant to Section 2.10(a)Lender;
(b) the Revolving Credit Commitment and Revolving The Credit Exposure and Available Commitment of such Defaulting Lender shall not be included in determining whether all Lenders, all affected Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 10.029.1); provided, other than pursuant to Section 10.02(b)(i)(i) such Defaulting Lender’s Commitment may not be increased or extended without its consent and (ii) the principal amount of, 10.02(b)(ii) or 10.02(b)(iii) that directly affects such Lender)interest payable on, provided that any waiver, amendment or modification requiring the consent Loans of all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require may not be reduced or excused or the consent scheduled date of payment may not be postponed as to such Defaulting Lender without such Defaulting Lender’s consent;
(c) if If any LC Swing Line Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of the Swing Line Exposure of such LC Exposure Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages but only to Commitment Percentages, provided that such reallocation does not cause the extent (x) the sum aggregate Credit Exposure of all any non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s LC Exposure does not Lender to exceed the total of all non-Defaulting Lenders’ Revolving Credit Commitments and (y) the conditions set forth in Section 5.02 are satisfied at such time;its Commitment; and
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Company shall applicable Borrowers shall, within one two Business Day Days following notice by the Administrative Agent cash collateralize Agent, prepay such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(i) for so long as such LC Exposure is outstanding;
(iii) if the Company cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to this Section 2.18(c), the Company shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.10(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.18(c), then the fees payable to the Lenders pursuant to Sections 2.10(a) and 2.10(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; or
(v) if any Defaulting Lender’s LC Exposure is neither cash collateralized nor reallocated pursuant to this Section 2.18(c), then, without prejudice to any rights or remedies of any Issuing Lender or any Lender hereunder, all commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Swing Line Exposure) and letter of credit fees payable under Section 2.10(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Lender(s) until such LC Exposure is cash collateralized and/or reallocated;
(d) so long as any such Lender is a Defaulting Lender, the Issuing Lenders no Swing Line Lender shall not be required to issue, extend, amend or increase fund any Letter of Credit, Swing Line Loan unless the applicable Issuing Lender it is satisfied that the related exposure will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers in accordance with this Section 2.18(c)Lenders, and participating interests in any such newly issued, extended or increased Letter of Credit made Swing Line Loan shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.18(c)(i) (and such Defaulting Lenders Lender shall not participate therein); and.
(e) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.16(d) but excluding Section 2.17(b)) shall, in lieu of being distributed to such Defaulting Lender, 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 If (i) first, a Bankruptcy Event with respect to a Lender Parent shall occur following the payment of any amounts owing by date hereof and for so long as such Defaulting Lender to the Administrative Agent hereunder, event shall continue or (ii) seconda Swing Line Lender has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, pro ratathe Swing Line Lender shall not be required to fund any Swing Line Loan, unless the Swing Line Lender shall have entered into arrangements with the Borrower or such Lender, satisfactory to the payment of any amounts owing by such Defaulting Swing Line Lender to defease any Issuing Lender, (iii) third, if so determined by the Administrative Agent or requested by an Issuing Lender, risk to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in any Letter of Credit, (iv) fourth, to the funding of any Loan it in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, hereunder.
(vf) fifth, if so determined by the Administrative Agent and the Borrower Representative, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders or an Issuing Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender or such Issuing Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, (vii) seventh, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, and (viii) eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is (x) a prepayment of the principal amount of any Loans or reimbursement obligations in respect of LC Disbursements for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 3.02 are satisfied, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Lender. In the event that the Administrative Agent, the Company Borrowers and the Issuing Swing Line Lenders agree each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the LC Swing Line Exposure of the Lenders shall be readjusted to reflect the inclusion of such Defaulting Lender’s Revolving Credit Commitment and on such date such Defaulting Lender shall purchase at par such of the Loans of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Defaulting Lender to hold such Loans in accordance with its Applicable Commitment Percentage.
Appears in 2 contracts
Sources: Credit Agreement (T. Rowe Price Credit Opportunities Fund, Inc.), Credit Agreement (T. Rowe Price Multi-Sector Account Portfolios, Inc.)
Defaulting Lender. Notwithstanding At any provision time when a Lender is then a Defaulting Lender, the Borrower, at the Borrower’s election, may elect to terminate such Defaulting Lender’s Revolving Commitment hereunder or such Defaulting Lender’s Term Commitment; provided that (A) such termination must be of the Defaulting Lender’s entire Revolving Commitment or Term Commitment, (B) the Non-Defaulting Lenders shall each have the option to accept an assignment of the Defaulting Lender’s Revolving Commitment or Term Commitment pursuant to Section 2.13 in lieu of a termination of Commitments pursuant to this Section 2.1(c)(iii), (C) to the extent that the Non-Defaulting Lenders do not take an assignment as provided in the immediately preceding clause (B), the Borrower shall pay all amounts owed by the Borrower to such Defaulting Lender in such Defaulting Lender’s capacity as a Revolving Lender under this Agreement and under the other Credit Documents (including principal of and interest on the Revolving Advances owed to such Defaulting Lender, accrued Commitment Fees (subject to Section 2.6(a)), and letter of credit fees but specifically excluding any amounts owing under Section 2.9 as result of such repayment of such Advances) and shall deposit with the Administrative Agent into the Cash Collateral Account cash collateral in the amount equal to such Defaulting Lender’s ratable share of the Letter of Credit Exposure (other than any such Letter of Credit Exposure that has been reallocated pursuant to Section 2.14), (D) if any Term Commitment is being terminated pursuant to this clause (iii), the Borrower shall pay all amounts owed by the Borrower to such Defaulting Lender in such Lender’s capacity as a Term Lender under this Agreement and under the other Credit Documents (including principal of and interest on the Term Advances owed to such Defaulting Lender, and accrued Commitment Fees (subject to Section 2.6(a)) but specifically excluding any amounts owing under Section 2.9 as result of such payment of such Advances), (E) a Defaulting Lender’s Revolving Commitment and unused Term Commitment may be terminated by the Borrower under this Section 2.1(c)(iii) if and only if at such time, the Borrower has elected, or is then electing, to terminate the Revolving Commitments and the unused Term Commitments of all then existing Defaulting Lenders, and (F) such termination shall not be permitted if an Event of Default has occurred and is continuing. Upon written notice to the Defaulting Lender and Administrative Agent of the Borrower’s election to terminate a Defaulting Lender’s Revolving Commitment and Term Commitment pursuant to this clause (iii) and the payment and deposit of amounts required to be made by the Borrower under clause (C) above, (1) such Defaulting Lender shall cease to be a “Revolving Lender” or a “Term Lender”, as applicable, hereunder for all purposes except that such Lender’s rights and obligations as a Revolving Lender or a Term Lender, as applicable, under Sections 2.10, 2.12, 8.9 and 9.1 shall continue with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Revolving Lender” or “Term Lender”, as applicable, hereunder, (2) such Defaulting Lender’s Revolving Commitment and Term Commitment shall be deemed terminated, and (3) such Defaulting Lender shall be relieved of its obligations hereunder as a “Revolving Lender” and “Term Lender”, as applicable, except as to its obligations under Section 8.9 shall continue with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Revolving Lender” or “Term Lender”, as applicable, hereunder, provided that, any such termination will not be deemed to be a waiver or release of any claim that the Borrower, the Administrative Agent, the Swing Line Lender, the Issuing Lender or any Lender may have against such Defaulting Lender. Notwithstanding anything herein to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion of the Revolving Credit Commitment of such Defaulting Lender pursuant to Section 2.10(a);
(b) the Revolving Credit Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, all affected Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.02, other than pursuant to Section 10.02(b)(i), 10.02(b)(ii) or 10.02(b)(iii) that directly affects such Lender), provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lender;
(c) if any LC Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of such LC Exposure shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages but only to the extent (x) if no Term Commitment is then being terminated pursuant to this clause (iii), the sum termination of all non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s LC Exposure does commitments, rights and obligations provided for in this clause (iii) shall not exceed the total of all non-Defaulting Lenders’ Revolving Credit Commitments affect rights and obligations that a Lender may have in its capacity as a Term Lender and (y) the conditions set forth in Section 5.02 are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Company shall within one Business Day following notice by the Administrative Agent cash collateralize such any termination of a Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation Revolving Commitment pursuant to this clause (i) above) in accordance with the procedures set forth in Section 2.04(i) for so long as such LC Exposure is outstanding;
(iii) if the Company cash collateralizes any portion must occur concurrently with a termination of such Defaulting Lender’s LC Exposure pursuant Term Commitments. Notwithstanding anything herein to this Section 2.18(c)the contrary, the Company shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.10(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.18(c), then the fees payable to the Lenders pursuant to Sections 2.10(a) and 2.10(b) shall be adjusted in accordance with such nonNon-Defaulting Lenders’ Applicable Percentages; or
(voption to take an assignment as provided in Section 2.1(c)(iii)(B) if any Defaulting Lender’s LC Exposure is neither cash collateralized nor reallocated pursuant to this Section 2.18(c), then, without prejudice to any rights or remedies of any Issuing Lender or any Lender hereunder, all commitment fees that otherwise would have been payable to such may be exercised by a Non-Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) in its sole and letter of credit fees payable under Section 2.10(b) with respect to such Defaulting Lender’s LC Exposure absolute discretion and nothing contained herein shall be payable to the applicable Issuing Lender(s) until such LC Exposure is cash collateralized and/or reallocated;
(d) so long as obligate any Lender is a Defaulting Lender, the Issuing Lenders shall not be required to issue, extend, amend or increase any Letter of Credit, unless the applicable Issuing Lender is satisfied that the related exposure will be 100% covered by the Revolving Credit Commitments of the nonNon-Defaulting Lenders and/or cash collateral will be provided by the Borrowers in accordance with this Section 2.18(c), and participating interests in any such newly issued, extended or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.18(c)(i) (and Defaulting Lenders shall not participate therein); and
(e) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.16(d) but excluding Section 2.17(b)) shall, in lieu of being distributed to such Defaulting Lender, 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 Lender to the Administrative Agent hereunder, (ii) second, pro rata, to the payment of take any amounts owing by such Defaulting Lender to any Issuing Lender, (iii) third, if so determined by the Administrative Agent or requested by an Issuing Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in any Letter of Credit, (iv) fourth, to the funding of any Loan in respect of which such Defaulting Lender 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 Borrower Representative, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders or an Issuing Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender or such Issuing Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, (vii) seventh, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, and (viii) eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is (x) a prepayment of the principal amount of any Loans or reimbursement obligations in respect of LC Disbursements for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 3.02 are satisfied, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Lender. In the event that the Administrative Agent, the Company and the Issuing Lenders agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Defaulting Lender’s Revolving Credit Commitment and on such date such Defaulting Lender shall purchase at par such of the Loans of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Defaulting Lender to hold such Loans in accordance with its Applicable Percentageassignment.
Appears in 2 contracts
Sources: Credit Agreement (Aly Energy Services, Inc.), Credit Agreement (Aly Energy Services, Inc.)
Defaulting Lender. Notwithstanding At any provision of this Agreement to the contrary, if any time when a Lender becomes is then a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion of the Revolving Credit Commitment of such Defaulting Lender pursuant to Section 2.10(a);
(b) the Revolving Credit Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all LendersBorrower, all affected Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.02, other than pursuant to Section 10.02(b)(i), 10.02(b)(ii) or 10.02(b)(iii) that directly affects such Lender), provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lender;
(c) if any LC Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of such LC Exposure shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages but only Borrower’s election, may elect to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus terminate such Defaulting Lender’s LC Exposure does not exceed Revolving Commitment hereunder; provided that (A) such termination must be of the total of all non-Defaulting Lenders’ Lender’s entire Revolving Credit Commitments and Commitment, (yB) the conditions set forth Borrower shall pay all amounts owed by the Borrower to such Defaulting Lender in such Lender’s capacity as a Lender under this Agreement and under the other Credit Documents (including principal of and interest on the Revolving Advances owed to such Defaulting Lender, accrued Commitment Fees (subject to the proviso Section 5.02 are satisfied at 2.7(a)), and letter of credit fees but specifically excluding any amounts owing under Section 2.10 as result of such time;
(iipayment of such Revolving Advances) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Company and shall within one Business Day following notice by deposit with the Administrative Agent into the Cash Collateral Account cash collateralize collateral in the amount equal to such Defaulting Lender’s LC ratable share of the Dollar Equivalent of the Letter of Credit Exposure (after giving effect to any partial reallocation pursuant to Section 2.16), and (C) a Defaulting Lender’s Revolving Commitment may be terminated by the Borrower under this Section 2.1(c)(ii) if and only if at such time, (x) the Borrower has elected, or is then electing, to terminate the Revolving Commitments of all then existing Defaulting Lenders and (y) no Default has occurred and is continuing. Upon written notice to the Defaulting Lender and Administrative Agent of the Borrower’s election to terminate a Defaulting Lender’s Revolving Commitment pursuant to this clause (iii) and the payment and deposit of amounts required to be made by the Borrower under clause (B) and (C) above, (1) in accordance such Defaulting Lender shall cease to be a “Lender” hereunder for all purposes except that such Lender’s rights and obligations as a Lender under Sections 2.11, 2.13, 8.5 and 9.2 shall continue with the procedures set forth in Section 2.04(irespect to events and occurrences occurring before or concurrently with its ceasing to be a “Lender” hereunder, (2) for so long as such LC Exposure is outstanding;
(iii) if the Company cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to this Section 2.18(c)Revolving Commitment shall be deemed terminated, the Company shall not be required to pay any fees to and (3) such Defaulting Lender pursuant shall be relieved of its obligations hereunder as a “Lender” except as to its obligations under Section 2.10(b8.5 and Section 9.2(d) which obligations shall continue with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Lender” hereunder, provided that, any such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant termination will not be deemed to this Section 2.18(c), then the fees payable to the Lenders pursuant to Sections 2.10(a) and 2.10(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; or
(v) if any Defaulting Lender’s LC Exposure is neither cash collateralized nor reallocated pursuant to this Section 2.18(c), then, without prejudice to any rights a waiver or remedies release of any Issuing Lender or any Lender hereunder, all commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.10(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Lender(s) until such LC Exposure is cash collateralized and/or reallocated;
(d) so long as any Lender is a Defaulting Lender, the Issuing Lenders shall not be required to issue, extend, amend or increase any Letter of Credit, unless the applicable Issuing Lender is satisfied that the related exposure will be 100% covered claim by the Revolving Credit Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers in accordance with this Section 2.18(c)Borrower, and participating interests in any such newly issued, extended or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.18(c)(i) (and Defaulting Lenders shall not participate therein); and
(e) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.16(d) but excluding Section 2.17(b)) shall, in lieu of being distributed to such Defaulting Lender, 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 Lender to the Administrative Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to any Issuing Lender, (iii) third, if so determined by the Administrative Agent or requested by an Issuing Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in any Letter of Credit, (iv) fourth, to the funding of any Loan in respect of which such Defaulting Lender 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 Borrower Representative, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders or an Issuing Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender or such Issuing Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, (vii) seventh, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, and (viii) eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is (x) a prepayment of the principal amount of any Loans or reimbursement obligations in respect of LC Disbursements for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 3.02 are satisfied, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Lender. In the event that the Administrative Agent, the Company and the Swing Line Lender, Issuing Lenders agree that a Defaulting or any Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the LC Exposure of the Lenders shall be readjusted to reflect the inclusion of may have against such Defaulting Lender’s Revolving Credit Commitment and on such date such Defaulting Lender shall purchase at par such of the Loans of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Defaulting Lender to hold such Loans in accordance with its Applicable Percentage.
Appears in 2 contracts
Sources: Credit Agreement (Forum Energy Technologies, Inc.), Credit Agreement (Forum Energy Technologies, Inc.)
Defaulting Lender. Notwithstanding any provision provisions of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) commitment fees Fees shall cease to accrue on the unfunded portion of the Revolving Credit Commitment of such Defaulting Lender pursuant to Section 2.10(a2.12(a) and, subject to clause (d)(iv) below, on the participation of such Defaulting Lender in Letters of Credit pursuant to Section 2.12(b);.
(b) the Revolving Credit The Commitment and Revolving Credit the LC Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, all affected Lenders or the Required Lenders or Super Majority Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.02, other than pursuant to Section 10.02(b)(i9.02), 10.02(b)(ii) or 10.02(b)(iii) that directly affects such Lender), ; provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than disproportionately and adversely relative to other affected Lenders shall require the consent of such Defaulting Lender;.
(c) Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of a Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Section 2.11, Section 2.18, Article 7 or otherwise, and including any amounts made available to the Administrative Agent by that Defaulting Lender pursuant to Section 9.09), shall be applied at such time or times as may be determined by the Administrative Agent and, where relevant, the Borrower Agent as follows: first, to the payment of any amounts owing by that Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by that Defaulting Lender to any applicable Issuing Banks and Swingline Lenders hereunder; third, if so reasonably determined by the Administrative Agent or reasonably requested by the applicable Issuing Bank or Swingline Lender, to be held as Cash collateral for future funding obligations of that Defaulting Lender of any participation in any Swingline Loan or Letter of Credit; fourth, as the Borrower Agent may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which that Defaulting Lender 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 Agent, to be held in a deposit account and released in order to satisfy obligations of that Defaulting Lender to fund Loans under this Agreement; sixth, to the payment of any amounts owing to the Lenders, the Issuing Banks or Swingline Lenders as a result of any judgment of a court of competent jurisdiction obtained by any Lender, any Issuing Bank or any Swingline Lender against that Defaulting Lender as a result of that Defaulting Lender’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 Agent as a result of any judgment of a court of competent jurisdiction obtained by the Borrower Agent against that Defaulting Lender as a result of that Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to that Defaulting Lender 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 Loans or LC Exposure in respect of which that Defaulting Lender has not fully funded its appropriate share and (y) such Loans or LC Exposure were made or created at a time when the conditions set forth in Section 4.02 were satisfied or waived, such payment shall be applied solely to pay the Revolver Loans of, and LC Exposure owed to, all non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or LC Exposure owed to, that Defaulting Lender. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post Cash collateral pursuant to this Section 2.22(c) shall be deemed paid to and redirected by that Defaulting Lender, and each Lender irrevocably consents hereto.
(d) If any Swingline Loans or LC Exposure exists or Protective Advance is outstanding at the time such a Lender becomes a Defaulting Lender then:
(i) all or any part of such Swingline Loans, LC Exposure and Protective Advances shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus such the amount of the Applicable Percentage of the Defaulting Lender (determined immediately prior to its being a Defaulting Lender) of Swingline Loans and Protective Advances that it has funded and are outstanding as of the date that it became a Defaulting Lender plus the Defaulting Lender’s LC Exposure does not exceed the total of all non-Defaulting Lenders’ Revolving Credit Commitments and (y) the conditions set forth in Section 5.02 are satisfied at such time;Commitments; or
(ii) if the reallocation described in clause paragraph (i) above cannot, or can only partially, be effected, the Company shall Borrowers shall, without prejudice to any other right or remedy available to them hereunder or under law, within one two Business Day Days following notice by the Administrative Agent cash Agent, Cash collateralize 100.0% of such Defaulting Lender’s LC Exposure and any obligations of such Defaulting Lender to fund participations in any Swingline Loan or Protective Advance (after giving effect to any partial reallocation pursuant to clause paragraph (i) above) in accordance with above and any Cash collateral provided by the procedures set forth in Section 2.04(i) for so long as such LC Exposure is outstanding;
(iii) if the Company cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant ) or make other arrangements reasonably satisfactory to this Section 2.18(c), the Company shall not be required Administrative Agent and to pay any fees to such Defaulting the applicable Issuing Bank and/or Swingline Lender pursuant to Section 2.10(b) with respect to such Defaulting Lender’s LC Exposure during and obligations to fund participations. Cash collateral (or the period such Defaulting Lender’s appropriate portion thereof) provided to reduce LC Exposure is cash collateralized;or other obligations shall be released promptly following (A) the elimination of the applicable LC Exposure or other obligations giving rise thereto (including by the termination of Defaulting Lender status of the applicable Lender (or, as appropriate, its assignee following compliance with Section 2.19)) or (B) the Administrative Agent’s good faith determination that there exists excess Cash collateral.
(iviii) if the LC Exposure of the non-Defaulting Lenders is are reallocated pursuant to this Section 2.18(c2.22(d), then the fees payable to the Lenders pursuant to Sections 2.10(a2.12(a) and 2.10(b) (b), as the case may be, shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; or
(viv) if any Defaulting Lender’s LC Exposure is neither cash collateralized nor not Cash collateralized, prepaid or reallocated pursuant to this Section 2.18(c2.22(d), then, without prejudice to any rights or remedies of any the applicable Issuing Lender Bank or any Lender hereunder, all commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.10(b2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Lender(s) Bank until such Defaulting Lender’s LC Exposure is cash collateralized and/or reallocated;Cash collateralized.
(de) so So long as any Lender is a Defaulting Lender, the Issuing Lenders Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, extend, create, incur, amend or increase any Letter of Credit, Credit unless the applicable Issuing Lender it is reasonably satisfied that the related exposure will be 100100.0% covered by the Revolving Credit Commitments of the non-Defaulting Lenders and/or cash Cash collateral will be provided by the Borrowers in accordance with this Section 2.18(c2.22(d), and participating interests in any such newly issued, extended or increased created Letter of Credit or newly made Swingline Loan shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.18(c)(i2.22(d)(i) (and Defaulting Lenders shall not participate therein); and.
(ef) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.16(d) but excluding Section 2.17(b)) shall, in lieu of being distributed to such Defaulting Lender, 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 Lender to the Administrative Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to any Issuing Lender, (iii) third, if so determined by the Administrative Agent or requested by an Issuing Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in any Letter of Credit, (iv) fourth, to the funding of any Loan in respect of which such Defaulting Lender 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 Borrower Representative, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders or an Issuing Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender or such Issuing Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, (vii) seventh, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, and (viii) eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is (x) a prepayment of the principal amount of any Loans or reimbursement obligations in respect of LC Disbursements for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 3.02 are satisfied, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Lender. In the event that the Administrative Agent, the Company Borrowers, the Issuing Banks and the Issuing Lenders Swingline Lender each agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the ABL Applicable Percentage of Swingline Loans and Protective Advances and LC Exposure of the ABL Revolving Lenders shall be readjusted to reflect the inclusion of such Defaulting Lender’s ABL Revolving Credit Commitment (if any) and on such date such Defaulting Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) or participations in Loans as the Administrative Agent shall determine may be necessary in order for such Defaulting Lender to hold such Loans or participations in accordance with its ABL Applicable Percentage or FILO Applicable Percentage, as the case may be; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers while that Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.
Appears in 2 contracts
Sources: Abl Credit Agreement (Party City Holdco Inc.), Abl Credit Agreement (Party City Holdco Inc.)
Defaulting Lender. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion of the Revolving Credit Loan Commitment of such Defaulting Lender pursuant to Section 2.10(a2.14(c)(i);
(b) the Commitments, Loans and other Revolving Credit Commitment and Revolving Credit Exposure Obligations of such Defaulting Lender shall not be included in determining whether all Lenders, all affected the Required Lenders or the Required Revolving Lenders have taken or may take any action hereunder (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 10.02, other than pursuant to Section 10.02(b)(i9.03), 10.02(b)(ii) or 10.02(b)(iii) that directly affects such Lender), ; provided that any waiverthis clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, amendment waiver or other modification requiring the consent of all Lenders such Lender or each Lender affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lenderthereby;
(c) if any LC Exposure exists L/C Obligations exist at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of the L/C Obligations of such LC Exposure Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages Pro Rata Shares of the Revolving Facility but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures Obligations plus such Defaulting Lender’s LC Exposure does L/C Obligations do not exceed the total of all non-Defaulting Lenders’ Revolving Credit Commitments and (y) the conditions set forth in Section 5.02 are satisfied at such timeLoan Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Company Borrower shall within one (1) Business Day following notice by the Administrative Agent cash collateralize for the benefit of each Issuing Bank only the Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure L/C Obligations (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(i) 3.11 for so long as such LC Exposure is L/C Obligations are outstanding;
(iii) if the Company Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure L/C Obligations pursuant to this Section 2.18(c)clause (ii) above, the Company Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.10(b) 3.08 with respect to such Defaulting Lender’s LC Exposure L/C Obligations during the period such Defaulting Lender’s LC Exposure is L/C Obligations are cash collateralized;
(iv) if the LC Exposure L/C Obligations of the non-Defaulting Lenders is are reallocated pursuant to this Section 2.18(c)clause (i) above, then the fees payable to the Revolving Lenders pursuant to Sections 2.10(a) and 2.10(b) Section 3.08 shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable PercentagesPro Rata Shares of the Revolving Facility; orand
(v) if all or any portion of such Defaulting Lender’s LC Exposure is L/C Obligations are neither reallocated nor cash collateralized nor reallocated pursuant to this Section 2.18(c)clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Lender Bank or any other Lender hereunder, all commitment fees Commitment Fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Revolving Loan Commitment that was utilized by such LC ExposureL/C Obligations) and letter of credit fees payable under Section 2.10(b) 3.08 with respect to such Defaulting Lender’s LC Exposure L/C Obligations shall be payable to such Issuing Bank until and to the applicable Issuing Lender(s) until extent that such LC Exposure is L/C Obligations are reallocated and/or cash collateralized and/or reallocated;collateralized; and
(d) so long as any such Lender is a Defaulting Lender, the no Issuing Lenders Bank shall not be required to issue, extend, amend or increase any Letter of Credit, unless the applicable Issuing Lender it is satisfied that the related exposure and the Defaulting Lender’s then outstanding L/C Obligations will be 100100.0% covered by the Revolving Credit Loan Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers Borrower in accordance with this Section 2.18(c9.02(c), and participating interests in any such newly issued, extended issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.18(c)(i9.02(c)(i) (and such Defaulting Lenders Lender shall not participate therein); and
(e) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.16(d) but excluding Section 2.17(b)) shall, in lieu of being distributed to such Defaulting Lender, 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 . If (i) first, a Bankruptcy Event with respect to the payment a parent of any amounts owing by Lender shall occur following the Closing Date and for so long as such Defaulting Lender to the Administrative Agent hereunder, event shall continue or (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to any Issuing LenderBank has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, (iii) thirdsuch Issuing Bank shall not be required to issue, if so determined by the Administrative Agent amend or requested by an Issuing Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in increase any Letter of Credit, (iv) fourthunless such Issuing Bank, as the case may be, shall have entered into arrangements with the Borrower or such Lender, satisfactory to such Issuing Bank, as the case may be, to the funding of defease any Loan risk to it in respect of which such Defaulting Lender 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 Borrower Representative, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders or an Issuing Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender or such Issuing Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, (vii) seventh, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, and (viii) eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is (x) a prepayment of the principal amount of any Loans or reimbursement obligations in respect of LC Disbursements for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 3.02 are satisfied, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Lenderhereunder. In the event that the Administrative Agent, the Company Borrower and the Issuing Lenders Banks each agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the LC Exposure L/C Obligations of the Lenders shall be readjusted to reflect the inclusion of such Defaulting Lender’s Revolving Credit Loan Commitment and on such date such Defaulting Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders as the Administrative Agent shall determine may be necessary in order for such Defaulting Lender to hold such Loans in accordance with its Applicable PercentagePro Rata Share of the Revolving Facility.
Appears in 2 contracts
Sources: Refinancing Amendment (Inovalon Holdings, Inc.), Credit Agreement (Inovalon Holdings, Inc.)
Defaulting Lender. Notwithstanding At any provision time when a Lender is then a Defaulting Lender, the Borrower, at the Borrower’s election, may elect to terminate such Defaulting Lender’s Revolving Commitment hereunder or such Defaulting Lender’s CapEx Commitment; provided that (A) such termination must be of the Defaulting Lender’s entire Revolving Commitment or CapEx Commitment, (B) the Non-Defaulting Lenders shall each have the option to accept an assignment of the Defaulting Lender’s Revolving Commitment or CapEx Commitment pursuant to Section 2.13 in lieu of a termination of Commitments pursuant to this Section 2.1(c)(iii), (C) to the extent that the Non-Defaulting Lenders do not take an assignment as provided in the immediately preceding clause (B), the Borrower shall pay all amounts owed by the Borrower to such Defaulting Lender in such Defaulting Lender’s capacity as a Revolving Lender under this Agreement and under the other Credit Documents (including principal of and interest on the Revolving Advances owed to such Defaulting Lender, accrued Commitment Fees (subject to Section 2.6(a)), and letter of credit fees but specifically excluding any amounts owing under Section 2.9 as result of such repayment of such Advances) and shall deposit with the Administrative Agent into the Cash Collateral Account cash collateral in the amount equal to such Defaulting Lender’s ratable share of the Letter of Credit Exposure (other than any such Letter of Credit Exposure that has been reallocated pursuant to Section 2.14), (D) if any CapEx Commitment is being terminated pursuant to this clause (iii), the Borrower shall pay all amounts owed by the Borrower to such Defaulting Lender in such Lender’s capacity as a CapEx Lender under this Agreement and under the other Credit Documents (including principal of and interest on the CapEx Advances owed to such Defaulting Lender, and accrued Commitment Fees (subject to Section 2.6(a)) but specifically excluding any amounts owing under Section 2.9 as result of such payment of such Advances), (E) a Defaulting Lender’s Revolving Commitment and unused CapEx Commitment may be terminated by the Borrower under this Section 2.1(c)(iii) if and only if at such time, the Borrower has elected, or is then electing, to terminate the Revolving Commitments and the unused CapEx Commitments of all then existing Defaulting Lenders, and (F) such termination shall not be permitted if an Event of Default has occurred and is continuing. Upon written notice to the Defaulting Lender and Administrative Agent of the Borrower’s election to terminate a Defaulting Lender’s Revolving Commitment and CapEx Commitment pursuant to this clause (iii) and the payment and deposit of amounts required to be made by the Borrower under clause (C) above, (1) such Defaulting Lender shall cease to be a “Revolving Lender” or a “CapEx Lender”, as applicable, hereunder for all purposes except that such Lender’s rights and obligations as a Revolving Lender or a CapEx Lender, as applicable, under Sections 2.10, 2.12, 8.9 and 9.1 shall continue with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Revolving Lender” or “CapEx Lender”, as applicable, hereunder, (2) such Defaulting Lender’s Revolving Commitment and CapEx Commitment shall be deemed terminated, and (3) such Defaulting Lender shall be relieved of its obligations hereunder as a “Revolving Lender” and a “CapEx Lender”, as applicable, except as to its obligations under Section 8.9 shall continue with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Revolving Lender” or a “CapEx Lender”, as applicable, hereunder, provided that, any such termination will not be deemed to be a waiver or release of any claim that the Borrower, the Administrative Agent, the Swing Line Lender, the Issuing Lender or any Lender may have against such Defaulting Lender. Notwithstanding anything herein to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion of the Revolving Credit Commitment of such Defaulting Lender pursuant to Section 2.10(a);
(b) the Revolving Credit Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, all affected Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.02, other than pursuant to Section 10.02(b)(i), 10.02(b)(ii) or 10.02(b)(iii) that directly affects such Lender), provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lender;
(c) if any LC Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of such LC Exposure shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages but only to the extent (x) the sum termination of all non-Defaulting Lenders’ Revolving Credit Exposures plus such commitments, rights and obligations provided for in this clause (iii) shall not affect rights and obligations that a Lender may have in its capacity as a Term Lender, (y) if no CapEx Commitment is then being terminated pursuant to this clause (iii), the termination of commitments, rights and obligations provided for in this clause (iii) shall not affect rights and obligations that a Lender may have in its capacity as a CapEx Lender, and (z) any termination of a Defaulting Lender’s LC Exposure does not exceed the total of all non-Defaulting Lenders’ Revolving Credit Commitments and (y) the conditions set forth in Section 5.02 are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Company shall within one Business Day following notice by the Administrative Agent cash collateralize such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation Commitment pursuant to this clause (i) above) in accordance with the procedures set forth in Section 2.04(i) for so long as such LC Exposure is outstanding;
(iii) if the Company cash collateralizes any portion must occur concurrently with a termination of such Defaulting Lender’s LC Exposure pursuant unused CapEx Commitment, if any. Notwithstanding anything herein to this Section 2.18(c)the contrary, the Company shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.10(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.18(c), then the fees payable to the Lenders pursuant to Sections 2.10(a) and 2.10(b) shall be adjusted in accordance with such nonNon-Defaulting Lenders’ Applicable Percentages; or
(voption to take an assignment as provided in Section 2.1(c)(iii)(B) if any Defaulting Lender’s LC Exposure is neither cash collateralized nor reallocated pursuant to this Section 2.18(c), then, without prejudice to any rights or remedies of any Issuing Lender or any Lender hereunder, all commitment fees that otherwise would have been payable to such may be exercised by a Non-Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) in its sole and letter of credit fees payable under Section 2.10(b) with respect to such Defaulting Lender’s LC Exposure absolute discretion and nothing contained herein shall be payable to the applicable Issuing Lender(s) until such LC Exposure is cash collateralized and/or reallocated;
(d) so long as obligate any Lender is a Defaulting Lender, the Issuing Lenders shall not be required to issue, extend, amend or increase any Letter of Credit, unless the applicable Issuing Lender is satisfied that the related exposure will be 100% covered by the Revolving Credit Commitments of the nonNon-Defaulting Lenders and/or cash collateral will be provided by the Borrowers in accordance with this Section 2.18(c), and participating interests in any such newly issued, extended or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.18(c)(i) (and Defaulting Lenders shall not participate therein); and
(e) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.16(d) but excluding Section 2.17(b)) shall, in lieu of being distributed to such Defaulting Lender, 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 Lender to the Administrative Agent hereunder, (ii) second, pro rata, to the payment of take any amounts owing by such Defaulting Lender to any Issuing Lender, (iii) third, if so determined by the Administrative Agent or requested by an Issuing Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in any Letter of Credit, (iv) fourth, to the funding of any Loan in respect of which such Defaulting Lender 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 Borrower Representative, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders or an Issuing Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender or such Issuing Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, (vii) seventh, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, and (viii) eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is (x) a prepayment of the principal amount of any Loans or reimbursement obligations in respect of LC Disbursements for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 3.02 are satisfied, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Lender. In the event that the Administrative Agent, the Company and the Issuing Lenders agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Defaulting Lender’s Revolving Credit Commitment and on such date such Defaulting Lender shall purchase at par such of the Loans of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Defaulting Lender to hold such Loans in accordance with its Applicable Percentageassignment.
Appears in 2 contracts
Sources: Credit Agreement (Aly Energy Services, Inc.), Credit Agreement (Aly Energy Services, Inc.)
Defaulting Lender. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion of the Revolving Credit Loan Commitment of such Defaulting Lender pursuant to Section 2.10(aSection 2.14(c)(i);
(b) the Commitments, Loans and other Revolving Credit Commitment and Revolving Credit Exposure Obligations of such Defaulting Lender shall not be included in determining whether all Lenders, all affected the Required Lenders or the Required Pro Rata Lenders have taken or may take any action hereunder (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 10.02, other than pursuant to Section 10.02(b)(iSection 9.03), 10.02(b)(ii) or 10.02(b)(iii) that directly affects such Lender), ; provided that any waiverthis clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, amendment waiver or other modification requiring the consent of all Lenders such Lender or each Lender affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lenderthereby;
(c) if any LC Exposure exists Swing Line Obligations or L/C Obligations exist at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of the Swing Line Obligations and L/C Obligations of such LC Exposure Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages Pro Rata Shares of the Revolving Facility but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures Obligations plus such Defaulting Lender’s LC Exposure Swing Line Obligations and L/C Obligations does not exceed the total of all non-Defaulting Lenders’ Revolving Credit Commitments and (y) the conditions set forth in Section 5.02 are satisfied at such timeLoan Commitments;
(ii) if the reallocation described in clause (i(i) above cannot, or can only partially, be effected, the Company Borrower shall within one (1) Business Day following notice by the Administrative Agent (x) first, prepay such Swing Line Obligations and (y) second, cash collateralize for the benefit of each Issuing Bank only the Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure L/C Obligations (after giving effect to any partial reallocation pursuant to clause (i(i) above) in accordance with the procedures set forth in Section 2.04(i) Section 3.11 for so long as such LC Exposure is L/C Obligations are outstanding;
(iii) if the Company Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure L/C Obligations pursuant to this Section 2.18(c)clause (ii) above, the Company Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.10(b) Section 3.08 with respect to such Defaulting Lender’s LC Exposure L/C Obligations during the period such Defaulting Lender’s LC Exposure is L/C Obligations are cash collateralized;
(iv) if the LC Exposure L/C Obligations of the non-Defaulting Lenders is are reallocated pursuant to this Section 2.18(c)clause (i) above, then the fees payable to the Revolving Lenders pursuant to Sections 2.10(a) and 2.10(b) Section 3.08 shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable PercentagesPro Rata Shares of the Revolving Facility; orand
(v) if all or any portion of such Defaulting Lender’s LC Exposure is L/C Obligations are neither reallocated nor cash collateralized nor reallocated pursuant to this Section 2.18(c)clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Lender Bank or any other Lender hereunder, all commitment fees Commitment Fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Revolving Loan Commitment that was utilized by such LC ExposureL/C Obligations) and letter of credit fees payable under Section 2.10(b) Section 3.08 with respect to such Defaulting Lender’s LC Exposure L/C Obligations shall be payable to such Issuing Bank until and to the applicable Issuing Lender(s) until extent that such LC Exposure is L/C Obligations are reallocated and/or cash collateralized and/or reallocated;collateralized; and
(d) so long as any such Lender is a Defaulting Lender, the Issuing Lenders Swing Line Bank shall not be required to fund any Swing Line Loan and no Issuing Bank shall be required to issue, extend, amend or increase any Letter of Credit, unless the applicable Issuing Lender it is satisfied that the related exposure and the Defaulting Lender’s then outstanding L/C Obligations will be 100100.0% covered by the Revolving Credit Loan Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers Borrower in accordance with this Section 2.18(cSection 9.02(c), and participating interests in any such newly issued, extended made Swing Line Loan or any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.18(c)(iSection 9.02(c)(i) (and such Defaulting Lenders Lender shall not participate therein); and
(e) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.16(d) but excluding Section 2.17(b)) shall, in lieu of being distributed to such Defaulting Lender, 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 . If (i) first, a Bankruptcy Event with respect to the payment a parent of any amounts owing by Lender shall occur following the Escrow Date and for so long as such Defaulting Lender to the Administrative Agent hereunder, event shall continue or (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to Swing Line Bank or any Issuing LenderBank has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, (iii) thirdthe Swing Line Bank shall not be required to fund any Swing Line Loan and such Issuing Bank shall not be required to issue, if so determined by the Administrative Agent amend or requested by an Issuing Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in increase any Letter of Credit, (iv) fourthunless the Swing Line Bank or such Issuing Bank, as the case may be, shall have entered into arrangements with the Borrower or such Lender, satisfactory to the Swing Line Bank or such Issuing Bank, as the case may be, to the funding of defease any Loan risk to it in respect of which such Defaulting Lender 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 Borrower Representative, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders or an Issuing Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender or such Issuing Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, (vii) seventh, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, and (viii) eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is (x) a prepayment of the principal amount of any Loans or reimbursement obligations in respect of LC Disbursements for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 3.02 are satisfied, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Lenderhereunder. In the event that the Administrative Agent, the Company Borrower, the Swing Line Bank and the Issuing Lenders Banks each agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the LC Exposure Swing Line Obligations and L/C Obligations of the Lenders shall be readjusted to reflect the inclusion of such Defaulting Lender’s Revolving Credit Loan Commitment and on such date such Defaulting Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swing Line Loans) as the Administrative Agent shall determine may be necessary in order for such Defaulting Lender to hold such Loans in accordance with its Applicable PercentagePro Rata Share of the Revolving Facility.
Appears in 2 contracts
Sources: Incremental Term Loan Amendment and Refinancing Amendment (Energizer Holdings, Inc.), Credit Agreement (Energizer Holdings, Inc.)
Defaulting Lender. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then so long as such Revolving Lender is a Defaulting Lender: (a) if any Swing Line Exposure or LC Exposure exists at the time a Revolving Lender becomes a Defaulting Lender, the Borrower shall within one Business Day following provisions notice by the Administrative Agent (i) first, prepay such Swing Line Exposure (or, if the Swing Line Lenders shall apply agree, cash collateralize 100% of such Defaulting Lender’s Swing Line Exposure (other than the portion of such Swing Line Exposure referred to in clause (b) of the definition of such term) therein and otherwise in accordance with the procedures set forth in Section 2.04(k) for so long as such Lender Swing Line Exposure is a outstanding) and (ii) second, cash collateralize such Defaulting Lender:
’s LC Exposure in an amount equal to 100% of such LC Exposure and otherwise in accordance with the procedures set forth in Section 2.04(k) for so long as such LC Exposure is outstanding; (ab) commitment no Swing Line Lender shall be required to fund any Swing Line Loan and the Issuing Lender shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure therein of such Defaulting Lender will be 100% cash collateralized by the Borrower in accordance with this Section; (c) fees shall cease to accrue on the unfunded portion of the Revolving Credit Commitment of such Defaulting Lender pursuant to Section 2.10(a);
; and (bd) the Revolving Credit Exposure and unused Revolving Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, all affected Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 10.02); provided, that this clause (d) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other than pursuant to Section 10.02(b)(i), 10.02(b)(ii) or 10.02(b)(iii) that directly affects such Lender), provided that any waiver, amendment or modification requiring the consent of all Lenders such Lender or each Lender affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lender;
(c) if any LC Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of such LC Exposure shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s LC Exposure does not exceed the total of all non-Defaulting Lenders’ Revolving Credit Commitments and (y) the conditions set forth in Section 5.02 are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Company shall within one Business Day following notice by the Administrative Agent cash collateralize such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(i) for so long as such LC Exposure is outstanding;
(iii) if the Company cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to this Section 2.18(c), the Company shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.10(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.18(c), then the fees payable to the Lenders pursuant to Sections 2.10(a) and 2.10(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; or
(v) if any Defaulting Lender’s LC Exposure is neither cash collateralized nor reallocated pursuant to this Section 2.18(c), then, without prejudice to any rights or remedies of any Issuing Lender or any Lender hereunder, all commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.10(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Lender(s) until such LC Exposure is cash collateralized and/or reallocated;
(d) so long as any Lender is a Defaulting Lender, the Issuing Lenders shall not be required to issue, extend, amend or increase any Letter of Credit, unless the applicable Issuing Lender is satisfied that the related exposure will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers in accordance with this Section 2.18(c), and participating interests in any such newly issued, extended or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.18(c)(i) (and Defaulting Lenders shall not participate therein); and
(e) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.16(d) but excluding Section 2.17(b)) shall, in lieu of being distributed to such Defaulting Lender, 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 Lender to the Administrative Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to any Issuing Lender, (iii) third, if so determined by the Administrative Agent or requested by an Issuing Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in any Letter of Credit, (iv) fourth, to the funding of any Loan in respect of which such Defaulting Lender 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 Borrower Representative, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders or an Issuing Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender or such Issuing Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, (vii) seventh, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, and (viii) eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is (x) a prepayment of the principal amount of any Loans or reimbursement obligations in respect of LC Disbursements for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 3.02 are satisfied, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Lender. In the event that the Administrative Agent, the Company and the Issuing Lenders agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Defaulting Lender’s Revolving Credit Commitment and on such date such Defaulting Lender shall purchase at par such of the Loans of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Defaulting Lender to hold such Loans in accordance with its Applicable Percentagethereby.
Appears in 1 contract
Sources: Incremental Loan Amendment (Sinclair Broadcast Group Inc)
Defaulting Lender. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(aA) commitment fees shall cease to accrue on the unfunded portion of the Revolving Credit Loan Commitment of such Defaulting Lender pursuant to Section 2.10(a2.14(C)(i);
(bB) the Revolving Credit Loan Commitment and Revolving Credit Exposure Obligations of such Defaulting Lender shall not be included in determining whether all Lenders, all affected Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 10.029.3); provided, that this clause (B) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other than pursuant to Section 10.02(b)(i), 10.02(b)(ii) or 10.02(b)(iii) that directly affects such Lender), provided that any waiver, amendment or modification requiring the consent of all Lenders such Lender or each Lender affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lenderthereby;
(cC) if any LC Exposure exists Swing Line Obligations or L/C Obligations exist at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of the Swing Line Obligations and L/C Obligations of such LC Exposure Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages Pro Rata Shares but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures Obligations plus such Defaulting Lender’s LC Exposure Swing Line Obligations and L/C Obligations does not exceed the total of all non-Defaulting Lenders’ Revolving Credit Commitments and (y) the conditions set forth in Section 5.02 are satisfied at such timeLoan Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Company Borrower shall within one (1) Business Day following notice by the Administrative Agent (x) first, prepay such Swing Line Obligations and (y) second, cash collateralize for the benefit of each Issuing Bank only the Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure L/C Obligations (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(i) 3.11 for so long as such LC Exposure is L/C Obligations are outstanding;
(iii) if the Company Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure L/C Obligations pursuant to this Section 2.18(c)clause (ii) above, the Company Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.10(b) 3.8 with respect to such Defaulting Lender’s LC Exposure L/C Obligations during the period such Defaulting Lender’s LC Exposure is L/C Obligations are cash collateralized;
(iv) if the LC Exposure L/C Obligations of the non-Defaulting Lenders is are reallocated pursuant to this Section 2.18(c)clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.10(a) and 2.10(b) Section 3.8 shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable PercentagesPro Rata Shares; orand
(v) if all or any portion of such Defaulting Lender’s LC Exposure is L/C Obligations are neither reallocated nor cash collateralized nor reallocated pursuant to this Section 2.18(c)clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Lender Bank or any other Lender hereunder, all commitment facility fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC ExposureL/C Obligations) and letter of credit fees payable under Section 2.10(b) 3.8 with respect to such Defaulting Lender’s LC Exposure L/C Obligations shall be payable to such Issuing Bank until and to the applicable Issuing Lender(s) until extent that such LC Exposure is L/C Obligations are reallocated and/or cash collateralized and/or reallocated;collateralized; and
(dD) so long as any such Lender is a Defaulting Lender, the Issuing Lenders Swing Line Bank shall not be required to fund any Swing Line Loan and no Issuing Bank shall be required to issue, extend, amend or increase any Letter of Credit, unless the applicable Issuing Lender it is satisfied that the related exposure and the Defaulting Lender’s then outstanding L/C Obligations will be 100% covered by the Revolving Credit Loan Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers Borrower in accordance with this Section 2.18(c9.2(C), and participating interests in any such newly issued, extended made Swing Line Loan or any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.18(c)(i9.2(C)(i) (and such Defaulting Lenders Lender shall not participate therein); and
(e) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.16(d) but excluding Section 2.17(b)) shall, in lieu of being distributed to such Defaulting Lender, 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 . If (i) first, a Bankruptcy Event with respect to the payment a Parent of any amounts owing by Lender shall occur following the date hereof and for so long as such Defaulting Lender to the Administrative Agent hereunder, event shall continue or (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to Swing Line Bank or any Issuing LenderBank has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, (iii) thirdthe Swing Line Bank shall not be required to fund any Swing Line Loan and such Issuing Bank shall not be required to issue, if so determined by the Administrative Agent amend or requested by an Issuing Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in increase any Letter of Credit, (iv) fourthunless the Swing Line Bank or such Issuing Bank, as the case may be, shall have entered into arrangements with the Borrower or such Lender, satisfactory to the Swing Line Bank or such Issuing Bank, as the case may be, to the funding of defease any Loan risk to it in respect of which such Defaulting Lender 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 Borrower Representative, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders or an Issuing Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender or such Issuing Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, (vii) seventh, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, and (viii) eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is (x) a prepayment of the principal amount of any Loans or reimbursement obligations in respect of LC Disbursements for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 3.02 are satisfied, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Lenderhereunder. In the event that the Administrative Agent, the Company Borrower, the Swing Line Bank and the Issuing Lenders Banks each agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the LC Exposure Swing Line Obligations and L/C Obligations of the Lenders shall be readjusted to reflect the inclusion of such Defaulting Lender’s Revolving Credit Loan Commitment and on such date such Defaulting Lender shall purchase at par such of the Loans of the other Lenders (other than Swing Line Loans) as the Administrative Agent shall determine may be necessary in order for such Defaulting Lender to hold such Loans in accordance with its Applicable PercentagePro Rata Share.
Appears in 1 contract
Sources: Revolving Credit Agreement (Energizer Holdings Inc)
Defaulting Lender. Notwithstanding At any provision of this Agreement to the contrary, if any time when a Lender becomes is then a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion of the Revolving Credit Commitment of such Defaulting Lender pursuant to Section 2.10(a);
(b) the Revolving Credit Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all LendersBorrower, all affected Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.02, other than pursuant to Section 10.02(b)(i), 10.02(b)(ii) or 10.02(b)(iii) that directly affects such Lender), provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lender;
(c) if any LC Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of such LC Exposure shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages but only Borrower’s election, may elect to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus terminate such Defaulting Lender’s LC Exposure does not exceed Commitment hereunder; provided that (A) such termination must be of the total of all non-Defaulting Lenders’ Revolving Credit Commitments and (y) the conditions set forth in Section 5.02 are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Company shall within one Business Day following notice by the Administrative Agent cash collateralize such Defaulting Lender’s LC Exposure entire Commitment, (after giving effect to any partial reallocation pursuant to clause (iB) above) in accordance with the procedures set forth in Section 2.04(i) for so long as such LC Exposure is outstanding;
(iii) if Borrower shall pay all amounts owed by the Company cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to this Section 2.18(c), the Company shall not be required to pay any fees Borrower to such Defaulting Lender pursuant in such Lender’s capacity as a Lender under this Agreement and under the other Credit Documents (including principal of and interest on the Revolving Advances owed to such Defaulting Lender, accrued Commitment Fees (subject to Section 2.10(b2.8), and letter of credit fees but specifically excluding any amounts owing under Section 2.11 as result of such payment of such Advances) and shall deposit with respect the Administrative Agent into the Cash Collateral Account Cash Collateral in the amount equal to such Defaulting Lender’s LC ratable share of the Letter of Credit Exposure during (including any such Letter of Credit Exposure that has been reallocated pursuant to Section 2.16), (C) a Defaulting Lender’s Commitment may be terminated by the period Borrower under this Section 2.1(b)(ii) if and only if at such time, the Borrower has elected, or is then electing, to terminate the Commitments of all then existing Defaulting Lenders, and (D) such termination shall not be permitted if a Default has occurred and is continuing. Upon written notice to the Defaulting Lender and Administrative Agent of the Borrower’s election to terminate a Defaulting Lender’s Commitment pursuant to this clause (ii) and the payment and deposit of amounts required to be made by the Borrower under clause (B) above, (1) such Defaulting Lender shall cease to be a Lender hereunder for all purposes except that such Lender’s rights and obligations as a Lender under Sections 2.12, 2.14, 8.9 and 9.1 shall continue with respect to events and occurrences occurring before or concurrently with its ceasing to be a Lender hereunder, (2) such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.18(c), then the fees payable to the Lenders pursuant to Sections 2.10(a) and 2.10(b) Commitment shall be adjusted in accordance deemed terminated, and (3) such Defaulting Lender shall be relieved of its obligations hereunder as a Lender except as to its obligations under Section 8.9 shall continue with respect to events and occurrences occurring before or concurrently with its ceasing to be a Lender hereunder, provided that, any such non-Defaulting Lenders’ Applicable Percentages; or
(v) if termination will not be deemed to be a waiver or release of any Defaulting claim by Borrower, the Administrative Agent, the Swingline Lender’s LC Exposure is neither cash collateralized nor reallocated pursuant to this Section 2.18(c), then, without prejudice to any rights or remedies of any Issuing Lender or any Lender hereunder, all commitment fees that otherwise would may have been payable to such Defaulting Lender (solely with respect to the portion of against such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.10(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Lender(s) until such LC Exposure is cash collateralized and/or reallocated;
(d) so long as any Lender is a Defaulting Lender, the Issuing Lenders shall not be required to issue, extend, amend or increase any Letter of Credit, unless the applicable Issuing Lender is satisfied that the related exposure will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers in accordance with this Section 2.18(c), and participating interests in any such newly issued, extended or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.18(c)(i) (and Defaulting Lenders shall not participate therein); and
(e) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.16(d) but excluding Section 2.17(b)) shall, in lieu of being distributed to such Defaulting Lender, 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 Lender to the Administrative Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to any Issuing Lender, (iii) third, if so determined by the Administrative Agent or requested by an Issuing Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in any Letter of Credit, (iv) fourth, to the funding of any Loan in respect of which such Defaulting Lender 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 Borrower Representative, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders or an Issuing Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender or such Issuing Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, (vii) seventh, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, and (viii) eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is (x) a prepayment of the principal amount of any Loans or reimbursement obligations in respect of LC Disbursements for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 3.02 are satisfied, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Lender. In the event that the Administrative Agent, the Company and the Issuing Lenders agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Defaulting Lender’s Revolving Credit Commitment and on such date such Defaulting Lender shall purchase at par such of the Loans of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Defaulting Lender to hold such Loans in accordance with its Applicable Percentage.
Appears in 1 contract
Defaulting Lender. Notwithstanding At any provision of this Agreement to the contrary, if any time when a Lender becomes is then a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion of the Revolving Credit Commitment of such Defaulting Lender pursuant to Section 2.10(a);
(b) the Revolving Credit Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all LendersBorrower, all affected Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.02, other than pursuant to Section 10.02(b)(i), 10.02(b)(ii) or 10.02(b)(iii) that directly affects such Lender), provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lender;
(c) if any LC Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of such LC Exposure shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages but only Borrower’s election, may elect to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus terminate such Defaulting Lender’s LC Exposure does not exceed the total of all non-Defaulting Lenders’ Revolving Credit Commitments and Commitment hereunder; provided that (yA) the conditions set forth in Section 5.02 are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Company shall within one Business Day following notice by the Administrative Agent cash collateralize Borrower must elect to terminate such Defaulting Lender’s LC entire Commitment, (B) the Borrower shall pay to the Administrative Agent all amounts owed by the Borrower to such Defaulting Lender in its capacity as a Lender under this Agreement and under the other Credit Documents (excluding any amounts owing under Section 2.10 as result of such payment) and shall, to the extent such Defaulting Lender’s ratable share of the Letter of Credit Exposure has not been, or has only partially been, reallocated pursuant to Section 2.16, deposit with the Administrative Agent into the Cash Collateral Account cash collateral in the amount equal to such Defaulting Lender’s ratable share of the Letter of Credit Exposure (after giving effect to any partial reallocation pursuant to clause Section 2.16), (iC) above) in accordance with a Defaulting Lender’s Commitment may be terminated by the procedures set forth in Borrower under this Section 2.04(i) for so long as such LC Exposure is outstanding;
(iii2.1(b)(ii) if and only if at such time, the Company cash collateralizes any portion Borrower has elected, or is then electing, to terminate the Commitments of all then existing Defaulting Lenders and (D) such termination shall not be permitted if a Default has occurred and is continuing. Upon written notice to the Defaulting Lender and the Administrative Agent of the Borrower’s election to terminate such Defaulting Lender’s LC Exposure Commitment pursuant to this Section 2.18(c), clause (ii) and the Company shall not be payment and deposit of amounts required to pay any fees to be made by the Borrower under clause (B) above, (1) such Defaulting Lender pursuant shall cease to Section 2.10(b) be a “Lender” hereunder for all purposes except that such Lender’s rights and obligations as a Lender under Sections 2.11, 2.13, 8.4 and 9.2 shall continue with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Lender” hereunder, (2) such Defaulting Lender’s LC Exposure during the period Commitment shall be deemed terminated in whole and (3) such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.18(c), then the fees payable to the Lenders pursuant to Sections 2.10(a) and 2.10(b) Lender shall be adjusted in accordance relieved of its obligations hereunder as a “Lender” except as to its obligations under Section 8.4 with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Lender” hereunder, provided that any such non-Defaulting Lenders’ Applicable Percentages; or
(v) if any Defaulting Lender’s LC Exposure is neither cash collateralized nor reallocated pursuant termination will not be deemed to this Section 2.18(c), then, without prejudice to any rights be a waiver or remedies release of any claim by the Borrower, the Administrative Agent, the Swing Line Lender, the Issuing Lender or any Lender hereunder, all commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of against such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.10(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Lender(s) until such LC Exposure is cash collateralized and/or reallocated;
(d) so long as any Lender is a Defaulting Lender, the Issuing Lenders shall not be required to issue, extend, amend or increase any Letter of Credit, unless the applicable Issuing Lender is satisfied that the related exposure will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers in accordance with this Section 2.18(c), and participating interests in any such newly issued, extended or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.18(c)(i) (and Defaulting Lenders shall not participate therein); and
(e) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.16(d) but excluding Section 2.17(b)) shall, in lieu of being distributed to such Defaulting Lender, 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 Lender to the Administrative Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to any Issuing Lender, (iii) third, if so determined by the Administrative Agent or requested by an Issuing Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in any Letter of Credit, (iv) fourth, to the funding of any Loan in respect of which such Defaulting Lender 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 Borrower Representative, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders or an Issuing Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender or such Issuing Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, (vii) seventh, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, and (viii) eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is (x) a prepayment of the principal amount of any Loans or reimbursement obligations in respect of LC Disbursements for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 3.02 are satisfied, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Lender. In the event that the Administrative Agent, the Company and the Issuing Lenders agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Defaulting Lender’s Revolving Credit Commitment and on such date such Defaulting Lender shall purchase at par such of the Loans of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Defaulting Lender to hold such Loans in accordance with its Applicable Percentage.
Appears in 1 contract
Defaulting Lender. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) commitment unused fees shall cease to accrue on the unfunded portion of the Revolving Credit Commitment of such Defaulting Lender pursuant to Section 2.10(a2.12(a);
(b) the Revolving Credit Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all the Required Lenders, all affected the Super-Majority Lenders or the Required all Lenders have taken or may take any action hereunder (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 10.02, other than pursuant to Section 10.02(b)(i12.01), 10.02(b)(ii) or 10.02(b)(iii) that directly affects such Lender), ; provided that any waiverthis clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, amendment waiver or other modification requiring the consent of all Lenders such Lender or each Lender affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lenderthereby;
(c) if any Swingline Exposure or LC Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of such the Swingline Exposure and LC Exposure of such Defaulting Lender (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages but only (x) to the extent (x) the sum of all that such reallocation does not, as to any non-Defaulting Lenders’ Revolving Credit Exposures plus Lender, cause such non-Defaulting Lender’s LC Exposure does not exceed the total of all non-Defaulting Lenders’ Revolving Credit Commitments Exposure to exceed its Commitment and (y) if the conditions set forth in Section 5.02 5.02(c) and (d) are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Company Borrowers shall within one Business Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of Issuing Bank only Borrowers’ obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(i2.05(j) for so long as such LC Exposure is outstanding;
(iii) if the Company Borrowers cash collateralizes collateralize any portion of such Defaulting Lender’s LC Exposure pursuant to this Section 2.18(c)clause (ii) above, the Company Borrowers shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.10(b) with 2.12(b)with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.18(c)clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.10(aSection 2.12(a) and 2.10(b(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; orand
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized nor reallocated pursuant to this Section 2.18(c)clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Lender Bank or any other Lender hereunder, all commitment unused fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter andletter of credit fees payable under Section 2.10(b) with 2.12(b)with respect to such Defaulting Lender’s LC Exposure shall be payable to Issuing Bank until and to the applicable Issuing Lender(s) until extent that such LC Exposure is reallocated and/or cash collateralized and/or reallocated;collateralized; and
(d) so long as any such Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and Issuing Lenders Bank shall not be required to issue, extend, amend or increase any Letter of Credit, unless the applicable Issuing Lender unless, in each case, it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers in accordance with this Section 2.18(c4.08(c), and participating interests in Swingline Exposure related to any such newly issued, extended made Swingline Loan or LC Exposure related to any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.18(c)(i4.08(c)(i) (and such Defaulting Lenders Lender shall not participate therein); and
(e) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.16(d) but excluding Section 2.17(b)) shall, in lieu of being distributed to such Defaulting Lender, 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 . If (i) first, a Bankruptcy Event with respect to the payment a Parent of any amounts owing by Lender shall occur following the date hereof and for so long as such Defaulting Lender to the Administrative Agent hereunder, event shall continue or (ii) secondSwingline Lender or Issuing Bank has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, pro rataSwingline Lender shall not be required to fund any Swingline Loan and Issuing Bank shall not be required to issue, to the payment of any amounts owing by such Defaulting Lender to any Issuing Lender, (iii) third, if so determined by the Administrative Agent amend or requested by an Issuing Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in increase any Letter of Credit, (iv) fourthunless Swingline Lender or Issuing Bank, as the case may be, shall have entered into arrangements with Borrowers or such Lender, satisfactory to Swingline Lender or Issuing Bank, as the case may be, to the funding of defease any Loan risk to it in respect of which such Defaulting Lender 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 Borrower Representative, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders or an Issuing Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender or such Issuing Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, (vii) seventh, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, and (viii) eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is (x) a prepayment of the principal amount of any Loans or reimbursement obligations in respect of LC Disbursements for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 3.02 are satisfied, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Lenderhereunder. In the event that the Administrative Agent, the Company Borrowers, Swingline Lender and the Issuing Lenders agree Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Defaulting Lender’s Revolving Credit Commitment and on such date such Defaulting Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Defaulting Lender to hold such Loans in accordance with its Applicable Percentage.
Appears in 1 contract
Sources: Revolving Credit Agreement (FelCor Lodging Trust Inc)
Defaulting Lender. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, either as a result of being a Non-Paying Lender or otherwise, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) commitment the standby fees payable pursuant to Section 3.10(g) shall cease to accrue on the unfunded unused portion of the Revolving Credit Operating Facility Commitment Amount and the Individual Tranche A Facility Commitment Amount of such Defaulting Lender pursuant to Section 2.10(a)Lender;
(b) a Defaulting Lender and its Individual Commitment Amount and its Rateable Portion of the Revolving Credit Commitment and Revolving Credit Exposure Aggregate Principal Amount of such Defaulting Lender under the Credit Facilities, or any of them, shall not be included in determining whether all Lenders, all affected Lenders or the Required Lenders Majority Lenders, have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.02, other than pursuant to Section 10.02(b)(i17.17), 10.02(b)(ii) or 10.02(b)(iii) that directly affects such Lender), ; provided that any waiver, amendment or modification requiring the consent of (i) all Lenders or (ii) each affected Lender which that affects such Defaulting Lender materially and adversely differently than other affected Lenders shall require the consent of such Defaulting Lender;
(c) if subject to Section 5.7(b) and 5.8(f), for the purposes of any LC Exposure exists at the time such Lender becomes Advance requested hereunder while there is a Defaulting Lender then:Lender, each Lender’s Rateable Portion thereof shall be calculated based on such Lender’s (A) Operating Facility Commitment Amount relative to the Operating Facility Commitment Amount as reduced by the Operating Facility Commitment Amount of the Defaulting Lender, in the case of the Operating Facility; (B) Individual Tranche A Facility Commitment Amount relative to the Tranche A Facility Commitment Amount as reduced by the Individual Tranche A Facility Commitment Amount of the Defaulting Lender, in the case of the Tranche A Facility; or (C) Individual Tranche B Facility Commitment Amount relative to the Tranche B Facility Commitment Amount as reduced by the Individual Tranche B Facility Commitment Amount of the Defaulting Lender, in the case of the Tranche B Facility;
(id) all or any part of the Agent may require such LC Exposure shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages but only Lender to pay to the extent (x) Agent for deposit into an escrow account maintained by and in the sum name of all non-Defaulting Lenders’ Revolving Credit Exposures plus the Agent an amount equal to such Defaulting Lender’s LC Exposure does not exceed maximum contingent obligations hereunder to the total of all non-Defaulting Lenders’ Revolving Credit Commitments and (y) Agent to the conditions set forth in Section 5.02 are satisfied at such timeextent permitted by applicable Law;
(iie) if to the reallocation described in clause (i) above cannot, or can only partially, be effectedextent permitted by applicable Law, the Company Agent shall within be entitled to withhold and deposit in one Business Day following notice or more non-interest bearing cash collateral accounts in the name of the Agent all amounts (whether principal, interest, fees or otherwise) received by the Administrative Agent cash collateralize such and due to a Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation Lender pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(i) this Agreement, for so long as such LC Exposure is outstanding;
(iii) if the Company cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to this Section 2.18(c), the Company shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.10(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.18(c), then the fees payable to the Lenders pursuant to Sections 2.10(a) and 2.10(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; or
(v) if any Defaulting Lender’s LC Exposure is neither cash collateralized nor reallocated pursuant to this Section 2.18(c), then, without prejudice to any rights or remedies of any Issuing Lender or any Lender hereunder, all commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.10(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Lender(s) until such LC Exposure is cash collateralized and/or reallocated;
(d) so long as any Lender is a Defaulting Lender, the Issuing Lenders which amounts shall not be required to issue, extend, amend or increase any Letter of Credit, unless the applicable Issuing Lender is satisfied that the related exposure will be 100% covered used by the Revolving Credit Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers in accordance with this Section 2.18(c), and participating interests in any such newly issued, extended or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.18(c)(i) (and Defaulting Lenders shall not participate therein); andAgent:
(e) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.16(d) but excluding Section 2.17(b)) shall, in lieu of being distributed to such Defaulting Lender, 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 reimburse the payment of Agent for any amounts owing to it, in its capacity as Agent, by such Defaulting Lender pursuant to any Document;
(ii) second, to repay on a pro rata basis the incremental portion of any Advances made by a Lender in order to fund a shortfall created by a Defaulting Lender and, upon receipt of such repayment, each such Lender shall be deemed to have assigned to the Defaulting Lender such incremental portion of such Advances;
(iii) third, to cash collateralize all other obligations of such Defaulting Lender to the Administrative Agent hereunderowing pursuant to this Agreement in such amount as shall be determined from time to time by the Agent in its discretion, (ii) second, pro rata, including such Defaulting Lender’s obligation to the payment pay its Lender’s Rateable Portion of any indemnification, reimbursement or expense reimbursement amounts owing by such Defaulting Lender to any Issuing Lender, (iii) third, if so determined not paid by the Administrative Agent or requested by an Issuing Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in any Letter of Credit, Borrower;
(iv) fourth, to fund from time to time the funding of any Loan in respect of which such Defaulting Lender 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 Borrower Representative, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders or an Issuing Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender or such Issuing Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach Rateable Portion of the Obligations; and
(f) for the avoidance of doubt, the Borrower shall retain and reserve its obligations under this Agreement, (vii) seventh, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers against such Defaulting Lender as a result of such other rights and remedies respecting each Defaulting Lender’s breach of its obligations under this Agreement, and (viii) eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is (x) a prepayment of the principal amount of any Loans or reimbursement obligations in respect of LC Disbursements for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 3.02 are satisfied, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Lender. In the event that the Administrative Agent, the Company and the Issuing Lenders agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Defaulting Lender’s Revolving Credit Commitment and on such date such Defaulting Lender shall purchase at par such of the Loans of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Defaulting Lender to hold such Loans in accordance with its Applicable Percentage.
Appears in 1 contract
Defaulting Lender. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion of the Revolving Credit Commitment of such Defaulting Lender pursuant to Section 2.10(a);
(b) the Revolving Credit Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, all affected Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.02, other than pursuant to Section 10.02(b)(i), 10.02(b)(ii) or 10.02(b)(iii) that directly affects such Lender), provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lender;
(c) if any LC Exposure exists Swingline Loans are outstanding or any Letter of Credit Outstandings exist at the time such when a Revolving Lender becomes a Defaulting Lender then:
(i) all or any part of the participating risk in such LC Exposure Swingline Loans and Letter of Credit Outstandings shall be reallocated among the nonRevolving Lenders that are Non-Defaulting Revolving Lenders pro rata in accordance with their respective Applicable Percentages RL Percentage but only to the extent (x) the sum of all nonRevolving Extensions of Credit of all Revolving Lenders that are Non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s LC Exposure Lenders does not exceed the total aggregate amount of all nonRevolving Loan Commitments of all Non-Defaulting Revolving Lenders’ , (y) immediately following the reallocation to a Revolving Lender that is a Non-Defaulting Lender, the Revolving Extensions of Credit Commitments of such Revolving Lender do not exceed its Revolving Loan Commitment at such time and (yz) the conditions set forth in Section 5.02 7.2 are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Company Borrower shall within one (1) Business Day following notice by the Administrative Agent cash collateralize (x) first, prepay such outstanding Swingline Loans and (y) second, Collateralize in a manner reasonably satisfactory to the applicable Issuing Lender such Defaulting Lender’s LC Exposure RL Percentage of all Letter of Credit Outstandings (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(i) for so long as such LC Exposure is outstandingLetter of Credit Outstandings exist;
(iii) if the Company cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to this Section 2.18(c), the Company Borrower shall not be required to pay any fees Letter of Credit Fees to such Defaulting Lender pursuant to Section 2.10(b4.1(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralizedRL Percentage of Letter of Credit Outstandings;
(iv) if the LC Exposure participating risk in Letter of Credit Outstandings of the nonNon-Defaulting Lenders is reallocated pursuant to this Section 2.18(c2.17(a), then the fees Letter of Credit Fees payable to the Revolving Lenders pursuant to Sections 2.10(a) and 2.10(bSection 4.1(b) shall be adjusted in accordance with such nonNon-Defaulting Lenders’ Applicable RL Percentages; orand
(v) if any Defaulting Lender’s LC Exposure Lenders’ RL Percentage of Letter of Credit Outstandings is neither cash collateralized Collateralized nor reallocated pursuant to this Section 2.18(c2.17(a), then, without prejudice to any rights or remedies of any Issuing Lender or any Revolving Lender hereunder, all commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion Letter of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees Credit Fees payable under Section 2.10(b4.1(b) with respect to such Defaulting Lender’s LC Exposure RL Percentage of Letter of Credit Outstandings shall be payable to the applicable each Issuing Lender(s) Lender until such LC Exposure portion of such Letter of Credit Outstandings is cash collateralized Collateralized and/or reallocated;.
(db) Notwithstanding anything to the contrary contained in Section 2.1(c) or Section 3, so long as any Revolving Lender is a Defaulting Lender, (i) the Issuing Lenders Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Lender shall be required to issue, extend, amend or increase any Letter of Credit, unless the applicable Issuing Lender it is satisfied that the related exposure will be 100% covered by the Revolving Credit Loan Commitments of the Non-Defaulting Lenders and/or collateral has been provided by the Borrower in accordance with Section 2.17(a), and (ii) for purposes of computing the amount of the obligation of each non-Defaulting Lender to acquire, refinance or fund participations in Swing Line Loans and Letters of Credit pursuant to Section 2.1(c) and Section 3, the pro rata share of each non-Defaulting Lender shall be computed without giving effect to the Revolving Loan Commitment of such Defaulting Lender; provided that the aggregate obligation of each non-Defaulting Lender to acquire, refinance or fund participations in Letters of Credit and Swing Line Loans shall not exceed the positive difference, if any, of (1) the Revolving Loan Commitment of such non-Defaulting Lender minus (2) the aggregate principal amount of the Revolving Loans of such Lender; provided further that in the event non-Defaulting Lenders’ obligations to acquire, refinance or fund participations in Letters of Credit are increased as a result of a Defaulting Lender, then all Letter of Credit fees that would have been paid to such Defaulting Lender shall be paid to such non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers ratably in accordance with this Section 2.18(c)such increase of such non-Defaulting Lender’s obligations to acquire, refinance or fund participations in Letters of Credit.
(c) In the event that the Administrative Agent, the Borrower, each Issuing Lender and participating interests the Swingline Lender each agrees that a Defaulting Lender has adequately remedied all matters that caused such Revolving Lender to be a Defaulting Lender, then (i) the risk participations in any such newly issued, extended or increased Swingline Loans and Letter of Credit Outstandings of the Revolving Lenders shall be allocated among nonreadjusted to reflect the inclusion of such Revolving Lender’s Revolving Loan Commitments and on such date such Revolving Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Revolving Lender to hold such Revolving Loans in accordance with its RL Percentage and (ii) so long as no Event of Default then exists, all funds held as cash collateral pursuant to the Letter of Credit Back-Defaulting Lenders Stop Arrangements shall thereafter be promptly returned to the respective Borrower. If the Revolving Loan Commitments have been terminated, all other Obligations have been paid in a manner consistent with Section 2.18(c)(i) (full and Defaulting Lenders no Letters of Credit are outstanding, then, so long as no Event of Default then exists, all funds held as cash collateral pursuant to the Letter of Credit Back-Stop Arrangements and the Swingline Back-Stop Arrangements shall not participate therein); andthereafter be promptly returned to the respective Borrower.
(ed) Notwithstanding anything to the contrary contained in this Agreement, if any amount payable Lender becomes a Defaulting Lender, then, until such time as such Lender is no longer a Defaulting Lender, to such Defaulting Lender hereunder the extent permitted by applicable law:
(whether on account i) Any payment of principal, interest, fees or otherwise and including any amount that would otherwise be payable other amounts received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to such Section 11 or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 2.16(d) but excluding Section 2.17(b)) shall, in lieu of being distributed to such Defaulting Lender, be retained by the Administrative Agent in a segregated account and, subject to any applicable requirements of law, 13.2 shall be applied at such time or times as may be determined by the Administrative Agent (i) as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder, (ii) ; second, pro rata, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any each Issuing Lender or the Swingline Lender hereunder; third, to Cash Collateralize each Issuing Lender, (iii) third, if so determined by the Administrative Agent or requested by an Issuing Lender, ’s Fronting Exposure with respect to be held in such account as cash collateral for future funding obligations of the Defaulting Lender in accordance with Section 2.17(a)(ii); fourth, as the Borrower may request (so long as no Default or Event of any participating interest in any Letter of Credit, (iv) fourthDefault exists), to the funding of any Loan in respect of which such Defaulting Lender 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 Borrower RepresentativeBorrower, to be held in a deposit account and released pro rata in order to (x) satisfy such account as cash collateral for Defaulting Lender’s potential future funding obligations of the with respect to Loans under this Agreement and (y) Cash Collateralize each Issuing Lender’s future Fronting Exposure with respect to such Defaulting Lender with respect to future Letters of any Loans Credit issued under this Agreement, (vi) in accordance with Section 2.17(a)(ii); sixth, to the payment of any amounts owing to the Lenders Lenders, each Issuing Lender or an Issuing the Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, any Issuing Lender or such Issuing any Swingline Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, (vii) seventhso long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrowers Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, ; and (viii) eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is (x) a prepayment payment of the principal amount of any Loans or reimbursement obligations with respect to Letters of Credit in respect of LC Disbursements for which a such Defaulting Lender has not fully funded its participation obligations appropriate share, and (y) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 3.02 are satisfied7.2 were satisfied and waived, such payment shall be applied solely to prepay pay the Loans of, and reimbursement obligations with respect to Letters of Credit owed to, all nonNon-Defaulting Lenders on a pro rata basis prior to being applied to the prepayment payment of any LoansLoans of, or reimbursement obligations with respect to Letters of Credit owed to, any such Defaulting LenderLender until such time as all Loans and funded and unfunded participations in Letters of Credit and Swingline Loans are held by the Lenders pro rata in accordance with the applicable Commitments without giving effect to Section 2.17(a)(i). In the event that the Administrative AgentAny payments, the Company and the Issuing Lenders agree that prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post Cash Collateral pursuant to this Section 2.17(d)(i) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
(ii) No Defaulting Lender shall be entitled to receive any fee pursuant to Section 4.1(a) for any period during which that Lender is a Defaulting Lender (and the Borrower shall not be required to pay any such fee that otherwise would have been required to have been paid to that Defaulting Lender); provided that such Defaulting Lender shall be entitled to receive fees pursuant to Section 4.1(c) for any period during which that Lender is a Defaulting Lender only to extent allocable to its pro rata share of the stated amount of Letters of Credit for which it has adequately remedied all matters provided Cash Collateral pursuant to Section 2.17(a).
(iii) With respect to any fees not required to be paid to any Defaulting Lender pursuant to clause (ii) above, the Borrower shall (x) pay to each Non-Defaulting Lender that caused portion of any such fee otherwise payable to such Defaulting Lender with respect to such Defaulting Lender’s participation in Letters of Credit or Swingline Loans that has been reallocated to such Non-Defaulting Lender pursuant to Section 2.17(a)(i), (y) pay to each Issuing Lender the amount of any such fee otherwise payable to such Defaulting Lender to the extent allocable to each Issuing Lender’s Fronting Exposure to such Defaulting Lender, and (z) not be required to pay the remaining amount of any such fee.
(e) If the Borrower, the Administrative Agent and the Swingline Lender and each Issuing Lender agree in writing that a Lender is no longer a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any Cash Collateral), that Lender will, to the extent applicable, purchase at par that portion of outstanding Loans of the other Lenders 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 Swingline Loans to be held pro rata by the Lenders in accordance with the applicable Commitments (without giving effect to Section 2.17(a)(i)), whereupon such Lender will cease to be a Defaulting Lender, then the LC Exposure ; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Lenders shall be readjusted to reflect the inclusion of such Borrower while that Lender was a Defaulting Lender’s Revolving Credit Commitment and on such date such Defaulting Lender shall purchase at par such of ; provided further that except to the Loans of extent otherwise expressly agreed by the other Lenders as the Administrative Agent shall determine may be necessary in order for such affected parties, no change hereunder from Defaulting Lender to hold such Loans in accordance with its Applicable PercentageLender will constitute a waiver or release of any claim of any party hereunder arising from that Lender having been a Defaulting Lender.
Appears in 1 contract
Defaulting Lender. (a) Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(ai) commitment fees a Defaulting Lender shall cease to accrue on not be included in determining whether, and the unfunded portion Commitment and the rateable share of the Revolving Credit Commitment of such Defaulting Lender pursuant to Section 2.10(a);
(b) the Revolving Credit Commitment and Revolving Credit Exposure Advances Outstanding of such Defaulting Lender shall not be included in determining whether all Lenderswhether, all affected Lenders or the Required Majority Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.02, other than pursuant to Section 10.02(b)(i10.1(b), 10.02(b)(ii) or 10.02(b)(iii) that directly affects such Lender), provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which that (A) materially and adversely affects such Defaulting Lender differently than other affected Lenders Lenders, (B) increases the Commitment or extends the Maturity Date of such Defaulting Lender, or (C) relates to the matters set forth in Sections 10.1(b)(ii), (iii), (v) (insofar as it relates to Section 10.1(b)) and (vii), shall require the consent of such Defaulting Lender;; and
(ii) for the avoidance of doubt, the Borrower shall retain and reserve its other rights and remedies respecting each Defaulting Lender.
(b) If the Administrative Agent has actual knowledge that a Lender is a Defaulting Lender at the time that the Administrative Agent receives an Advance Notice, then each other Lender under the Credit Facility shall fund its rateable share of such affected Advance (and, in calculating such rateable share, the Administrative Agent shall ignore the Commitments of each such Defaulting Lender under the Credit Facility); provided that, for certainty, no Lender shall be obligated by this Section 10.9(b) to make or provide Advances in excess of its Commitment under the Credit Facility. If the Administrative Agent acquires actual knowledge that a Lender is a Defaulting Lender at any time after the Administrative Agent receives, then the Administrative Agent shall promptly notify the Borrower that such Lender is a Defaulting Lender (and such Lender shall be deemed to have consented to such disclosure). Each Defaulting ▇▇▇▇▇▇ agrees to indemnify each other Lender for any amounts paid by such Lender under this Section 10.9(b) and which would otherwise have been paid by the Defaulting Lender if its Commitment had been included in determining the rateable share of such affected Advances.
(c) if If any LC Exposure exists at the time such Lender becomes shall cease to be a Defaulting Lender then:
(i) all or any part of such LC Exposure shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s LC Exposure does not exceed the total of all non-Defaulting Lenders’ Revolving Credit Commitments and (y) the conditions set forth in Section 5.02 are satisfied at such time;
(ii) if the reallocation described Borrower and the Administrative Agent, agree in clause writing in their sole discretion that a Defaulting Lender should no longer be deemed to be a Defaulting Lender (i) above cannotexcept in the case of a Lender that is or has a director or indirect parent company that is subject to a proceeding under any proceeding under any bankruptcy law, insolvency law, or can only partiallyother similar law or otherwise), be effectedthen, upon becoming aware of the Company shall within one Business Day following notice by same, the Administrative Agent cash collateralize such Defaulting Lender’s LC Exposure shall notify the other Lenders and (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(iwritten direction of the Administrative Agent) for so long as such LC Exposure is outstanding;
Lender (iii) if the Company cash collateralizes any portion of such which has ceased to be a Defaulting Lender) shall purchase, and the other Lenders shall on a rateable basis sell and assign to such Lender, portions of the Advances Outstanding equal in total to such ▇▇▇▇▇▇’s LC Exposure pursuant rateable share thereof without regard to this Section 2.18(c10.9(a), the Company shall not provided that no adjustments will be required to pay any fees to such Defaulting Lender pursuant to Section 2.10(b) made retroactively with respect to such Fees accrued or payments made by or on behalf of the Borrower while that ▇▇▇▇▇▇ was a Defaulting Lender’s LC Exposure during ; and provided, further, that except to the period such extent otherwise expressly agreed by the affected parties, no change hereunder from a Defaulting Lender to a Lender will constitute a waiver or release of any claim of any party hereunder arising from that ▇▇▇▇▇▇ having been a Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.18(c), then the fees payable to the Lenders pursuant to Sections 2.10(a) and 2.10(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; or
(v) if any Defaulting Lender’s LC Exposure is neither cash collateralized nor reallocated pursuant to this Section 2.18(c), then, without prejudice to any rights or remedies of any Issuing Lender or any Lender hereunder, all commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.10(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Lender(s) until such LC Exposure is cash collateralized and/or reallocated;.
(d) so long as Each Defaulting Lender indemnifies the Borrower for any Lender is losses, claims, costs, damages or liabilities (including reasonable out-of-pocket expenses and reasonable legal fees on a Defaulting Lender, the Issuing Lenders shall not be required to issue, extend, amend or increase any Letter of Credit, unless the applicable Issuing Lender is satisfied that the related exposure will be 100% covered solicitor and his own client basis) incurred by the Revolving Credit Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers in accordance with this Section 2.18(c), and participating interests in any such newly issued, extended or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.18(c)(i) (and Defaulting Lenders shall not participate therein); and
(e) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.16(d) but excluding Section 2.17(b)) shall, in lieu of being distributed to such Defaulting Lender, 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 Lender to the Administrative Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to any Issuing Lender, (iii) third, if so determined by the Administrative Agent or requested by an Issuing Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in any Letter of Credit, (iv) fourth, to the funding of any Loan in respect of which such Defaulting Lender 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 Borrower Representative, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders or an Issuing Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender or such Issuing Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach Lender failing to comply with the terms of this Agreement including any failure to fund its obligations under this Agreement, (vii) seventh, to the payment portion of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, and (viii) eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is (x) a prepayment of the principal amount of any Loans or reimbursement obligations in respect of LC Disbursements for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 3.02 are satisfied, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Lender. In the event that the Administrative Agent, the Company and the Issuing Lenders agree that a Defaulting Lender has adequately remedied all matters that caused such Lender Advances required to be a Defaulting Lender, then the LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Defaulting Lender’s Revolving Credit Commitment and on such date such Defaulting Lender shall purchase at par such of the Loans of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Defaulting Lender to hold such Loans in accordance with its Applicable Percentagemade by it hereunder.
Appears in 1 contract
Sources: Credit Agreement (Canadian Pacific Kansas City LTD/Cn)
Defaulting Lender. Notwithstanding At any provision of this Agreement to the contrary, if any time when a Lender becomes is then a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) commitment fees shall cease Borrower, at Borrower’s election, may elect to accrue on the unfunded portion of the Revolving Credit Commitment of such Defaulting Lender pursuant to Section 2.10(a);
(b) the Revolving Credit Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, all affected Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.02, other than pursuant to Section 10.02(b)(i), 10.02(b)(ii) or 10.02(b)(iii) that directly affects such Lender), provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lender;
(c) if any LC Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of such LC Exposure shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus terminate such Defaulting Lender’s LC Exposure does not exceed the total Commitment hereunder; provided that (A) such termination must be of all non-Defaulting Lenders’ Revolving Credit Commitments and (y) of the conditions set forth in Section 5.02 are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Company shall within one Business Day following notice by the Administrative Agent cash collateralize such Defaulting Lender’s LC Exposure Commitment, (after giving effect to any partial reallocation pursuant to clause (iB) above) in accordance with the procedures set forth in Section 2.04(i) for so long as such LC Exposure is outstanding;
(iii) if Borrower shall pay all amounts owed by the Company cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to this Section 2.18(c), the Company shall not be required to pay any fees Borrower to such Defaulting Lender pursuant in such Lender’s capacity as a Lender under this Agreement and under the other Loan Documents (including principal of and interest on the Advances owed to such Defaulting Lender, accrued Commitment Fees (subject to Section 2.10(b2.16(a)(iii)), and letter of credit fees (subject to Section 2.15(a)(iii) but specifically excluding any amounts owing under Section 2.12 as result of such payment of such Advances) and shall deposit with respect the Administrative Agent into the Cash Collateral Account cash collateral in the amount equal to such Defaulting Lender’s LC Pro Rata Share of the Letter of Credit Exposure during (but including any such portion thereof that has been reallocated pursuant to Section 2.15), (C) a Defaulting Lender’s Commitment may be terminated by the period Borrower under this Section 2.1(c)(ii) if and only if at such time, the Borrower has elected, or is then electing, to terminate the Commitments of all then existing Defaulting Lenders, and (D) no Default has occurred and is continuing at the time of such election and termination. Upon written notice to the Defaulting Lender and Administrative Agent of the Borrower’s election to terminate a Defaulting Lender’s Commitment pursuant to this clause (ii) and the payment and deposit of amounts required to be made by the Borrower under clause (B) and (C) above, (1) such Defaulting Lender shall cease to be a “ Lender” hereunder for all purposes except that such Lender’s rights and obligations as a Lender under Sections 2.05(d), 2.13, 2.14, 8.08, 9.04 and 9.07 shall continue with respect to events and occurrences occurring before or concurrently with its ceasing to be a “ Lender” hereunder, (2) such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.18(c), then the fees payable to the Lenders pursuant to Sections 2.10(a) and 2.10(b) Commitment shall be adjusted in accordance deemed terminated, and (3) such Defaulting Lender shall be relieved of its obligations hereunder as a “ Lender” except as to its obligations under Section 8.08 and any other obligations that expressly survive, which obligations shall continue with respect to events and occurrences occurring before or concurrently with its ceasing to be a “ Lender” hereunder, provided that, any such non-Defaulting Lenders’ Applicable Percentages; or
(v) if any Defaulting Lender’s LC Exposure is neither cash collateralized nor reallocated pursuant termination will not be deemed to this Section 2.18(c), then, without prejudice to any rights be a waiver or remedies release of any claim by the Borrower, the Administrative Agent, Issuing Lender or any Lender hereunder, all commitment fees that otherwise would may have been payable to such Defaulting Lender (solely with respect to the portion of against such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.10(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Lender(s) until such LC Exposure is cash collateralized and/or reallocated;
(d) so long as any Lender is a Defaulting Lender, the Issuing Lenders shall not be required to issue, extend, amend or increase any Letter of Credit, unless the applicable Issuing Lender is satisfied that the related exposure will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers in accordance with this Section 2.18(c), and participating interests in any such newly issued, extended or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.18(c)(i) (and Defaulting Lenders shall not participate therein); and
(e) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.16(d) but excluding Section 2.17(b)) shall, in lieu of being distributed to such Defaulting Lender, 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 Lender to the Administrative Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to any Issuing Lender, (iii) third, if so determined by the Administrative Agent or requested by an Issuing Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in any Letter of Credit, (iv) fourth, to the funding of any Loan in respect of which such Defaulting Lender 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 Borrower Representative, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders or an Issuing Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender or such Issuing Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, (vii) seventh, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, and (viii) eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is (x) a prepayment of the principal amount of any Loans or reimbursement obligations in respect of LC Disbursements for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 3.02 are satisfied, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Lender. In the event that the Administrative Agent, the Company and the Issuing Lenders agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Defaulting Lender’s Revolving Credit Commitment and on such date such Defaulting Lender shall purchase at par such of the Loans of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Defaulting Lender to hold such Loans in accordance with its Applicable Percentage.
Appears in 1 contract
Defaulting Lender. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion of the Revolving Credit Commitment of such Defaulting Lender pursuant to Section 2.10(a)Sections 2.6 and 3.3;
(b) the aggregate Revolving Credit Commitment and Commitments (or, after the termination of the Revolving Credit Exposure Commitment, the Revolving Credit Loans) of such Defaulting Lender shall not be included in determining whether all Lenders, all affected Required Lenders, Supermajority Lenders or the Required affected Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.0210.1); provided that, other than pursuant to Section 10.02(b)(i), 10.02(b)(ii(i) or 10.02(b)(iii) that directly affects such Lender), provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lender;, (ii) the principal amount of, or rate of interest on, any Revolving Credit Loan made by such Defaulting Lender may not be reduced without the consent of such Defaulting Lender, (iii) the payment dates of any Revolving Credit Loans made by such Defaulting Lender may not be changed without the consent of such Defaulting Lender, and (iv) the Revolving Credit Commitment of such Defaulting Lender may not be increased or extended without the consent of such Defaulting Lender.
(c) if any LC Exposure exists Refunded Swing Line Loan, Swing Line Participation Amount, Payment Amount or Participation Amount shall be due and owing at the time such a Lender becomes a Defaulting Lender then:
(i) all or any part of such LC Exposure Refunded Swing Line Loan, Swing Line Participation Amount, Payment Amount or Participation Amount shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Revolving Credit Percentages but only to the extent (x) that such reallocation does not cause the sum aggregate Revolving Extensions of all Credit of any non-Defaulting Lenders’ Revolving Credit Exposures plus Lender to exceed such non-Defaulting Lender’s LC Exposure does not exceed the total of all non-Defaulting Lenders’ Revolving Credit Commitments and (y) the conditions set forth in Section 5.02 are satisfied at such time;Commitment; and
(ii) if the reallocation described in clause (iSection 2.23(c)(i) above cannot, or can only partially, be effected, the Company Borrower shall within one Business Day following notice by the Administrative Agent cash collateralize (x) first, prepay such Swing Line Exposure and (y) second, Cash Collateralize such Defaulting Lender’s LC Exposure Refunded Swing Line Loan, Swing Line Participation Amount, Payment Amount or Participation Amount (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with on terms and conditions satisfactory to the procedures set forth in Section 2.04(i) Administrative Agent for so long as such LC Exposure is Refunded Swing Line Loan, Swing Line Participation Amount, Payment Amount or Participation Amount are outstanding;
(iii) if the Company cash collateralizes Borrower Cash Collateralizes any portion of such Defaulting Lender’s LC Exposure Participation Amount pursuant to this Section 2.18(c2.23(c)(ii), the Company Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.10(b) 3.3 with respect to such Defaulting Lender’s LC Exposure Participation Amount during the period such Defaulting Lender’s LC Exposure Participation Amount is cash collateralizedCash Collateralized;
(iv) if the LC Exposure Refunded Swing Line Loan, Swing Line Participation Amount, Payment Amount or Participation Amount of the non-Defaulting Lenders is reallocated pursuant to this Section 2.18(c2.23(c)(i), then the fees payable to the Lenders pursuant to Sections 2.10(a) Section 2.6 and 2.10(b) Section 3.3 shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Revolving Credit Percentages; orand
(v) if any Defaulting Lender’s LC Exposure Payment Amount or Participation Amount is neither cash collateralized nor reallocated pursuant to this Section 2.18(c2.23(c)(i) or (ii), then, without prejudice to any rights or remedies of any the Issuing Lender or any Lender hereunder, all commitment facility fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s L/C Commitment that was utilized by such LC ExposureParticipation Amount, as applicable) and letter Letter of credit Credit fees payable under Section 2.10(b) 3.3 with respect to such Defaulting Lender’s LC Exposure Payment Amount and Participation Amount shall be payable to the applicable Issuing Lender(s) Lender until such LC Exposure Payment Amount or Participation Amount is cash collateralized and/or and reallocated;
(d) so long as any Lender is a Defaulting Lender, the Swing Line Lender shall not be required to fund any Swing Line Loan and the Issuing Lenders Lender shall not be required to issue, extend, amend or increase any Letter of Credit, unless the applicable Issuing Lender it is satisfied that the related exposure will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Lenders and/or or cash collateral will be provided by the Borrowers Borrower in accordance with this Section 2.18(c2.23(c), and participating interests in any such newly issued, extended issued or increased Letter of Credit or newly made Swing Line Loan shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.18(c)(i2.23(c)(i) (and Defaulting Lenders shall not participate therein); and
(e) any amount payable to such Defaulting Lender hereunder (whether on account Any payment of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.16(d) but excluding Section 2.17(b)) shall, in lieu of being distributed to such Defaulting Lender, be retained other amounts received by the Administrative Agent in a segregated for the account and, subject to any applicable requirements of law, such Defaulting Lender shall be applied at such time or times as may be determined by the Administrative Agent as follows: (i) first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder, (ii) second, pro rata, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Issuing Lender or Swing Line Lender, (iii) third, if so determined by the Administrative Agent or requested by an Issuing Lender or Swing Line Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender in respect of any existing or future participating interest in any Swing Line Loan or Letter of Credit, (iv) fourth, as the Borrower may request and so long as no Default exists, to the funding of any Loan in respect of which such that Defaulting Lender 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 Borrower RepresentativeBorrower, to be held in such a non-interest bearing deposit account as cash collateral for future funding and released in order to satisfy obligations of the such Defaulting Lender of any to fund future Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders or an the Issuing Lender or Swing Line Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender or such Issuing Lender or Swing Line Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, (vii) seventh, so long as no Default exists, to the payment of any amounts owing to the Borrowers Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, and (viii) eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that that, with respect to clause (viii), if such payment is (x) a prepayment of the principal amount of any Loans or reimbursement obligations in respect of LC Disbursements for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 3.02 2.9 are satisfied, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations Reimbursement Obligations owed to, any Defaulting Lender. In the event that the Administrative Agent, the Company and the Issuing Lenders agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Defaulting Lender’s Revolving Credit Commitment and on such date such Defaulting Lender shall purchase at par such of the Loans of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Defaulting Lender to hold such Loans in accordance with its Applicable Percentage.
Appears in 1 contract
Defaulting Lender. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) commitment fees Fees shall cease to accrue on the unfunded portion of the Revolving Credit Commitment of such Defaulting Lender pursuant to Section 2.10(a);Lender.
(b) The Commitment amounts outstanding on the Revolving Credit Commitment and Revolving Credit Exposure L/C Participations of such Defaulting Lender shall not be included in determining whether all Lenders, all affected Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.02, other than pursuant to Section 10.02(b)(i9.11), 10.02(b)(ii) or 10.02(b)(iii) that directly affects such Lender), ; provided that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of any waiver, amendment or modification (i) requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require (ii) described in clause (i) or (ii) of the consent of such Defaulting Lender;first proviso in Section 9.11.
(c) if If any LC L/C Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of the L/C Exposure of such LC Exposure Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages Pro Rata Shares (calculated without regard to such Defaulting Lender’s Commitment) but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures Exposure plus such Defaulting Lender’s LC L/C Exposure does not exceed the total of all non-Defaulting Lenders’ Revolving Credit Commitments and (y) the conditions set forth in Commitment. Subject to Section 5.02 are satisfied at 16.1, no reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Lender having become a Defaulting Lender, including any claim of a non-Defaulting Lender as a result of such timenon-Defaulting Lender’s increased exposure following such reallocation;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Company Borrower shall within one Business Day following notice by the Administrative Agent Agent, cash collateralize for the benefit of the Issuing Lender only the Borrower’s obligations corresponding to such Defaulting Lender’s LC L/C Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(i) 2.2.9 for so long as such LC L/C Exposure is outstanding;
(iii) if the Company Borrower cash collateralizes any portion of such Defaulting Lender’s LC L/C Exposure pursuant to this Section 2.18(c)clause (ii) above, the Company Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.10(b) with respect to such Defaulting Lender’s LC L/C Exposure during the period such Defaulting Lender’s LC L/C Exposure is cash collateralized;
(iv) if the LC L/C Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.18(c)clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.10(a) and 2.10(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable PercentagesPro Rata Shares; orand
(v) if all or any portion of such Defaulting Lender’s LC L/C Exposure is neither reallocated nor cash collateralized nor reallocated pursuant to this Section 2.18(c)clause (i) or (ii) above, then, without prejudice to any rights or remedies of any the Issuing Lender or any other Lender hereunder, all commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.10(b3.3(a) with respect to such Defaulting Lender’s LC L/C Exposure shall be payable to the applicable Issuing Lender(s) Lender until and to the extent that such LC L/C Exposure is reallocated and/or cash collateralized and/or reallocated;collateralized.
(d) so So long as any Lender is a Defaulting Lender, the no Issuing Lenders shall not be required to issue, extend, amend or increase any Letter of Credit, unless the applicable Issuing Lender it is satisfied that the related exposure will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers in accordance with this Section 2.18(c), and participating interests in any such newly issued, extended or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.18(c)(i) (and Defaulting Lenders shall not participate therein); andBorrower.
(e) any Any amount payable to such Defaulting Lender hereunder under this Agreement (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.16(d) but excluding Section 2.17(bthis Agreement)) , shall, in lieu of being distributed to such Defaulting Lender, 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 Lender to the Administrative Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to any Issuing LenderLender hereunder, (iii) third, if so determined to the cash collateralization of any L/C Participations (in which case any cash collateral posted by the Administrative Agent or requested by Borrower pursuant to this Section 2.19 shall be released to the Borrower in an Issuing Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in any Letter of Creditequal amount), (iv) fourth, to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent[reserved], (v) fifth, if so determined by the Administrative Agent and the Borrower RepresentativeAgent, held in such account as cash collateral for future funding obligations and released pro rata in order to cash collateralization of the Issuing Lenders’ future L/C Exposure with respect to such Defaulting Lender with respect to future Letters of any Loans Credit issued under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders or an the Issuing Lender Lenders as a result of any judgment of a court of competent jurisdiction obtained by any Lender or such the Issuing Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, (vii) seventh, so long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrowers Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, and (viii) eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is (x) a prepayment payment of the principal amount of any Loans or reimbursement obligations Letters of Credit in respect of LC Disbursements for which a such Defaulting Lender has not fully funded its participation obligations appropriate share, and (y) made such related Letters of Credit were issued at a time when the conditions set forth in Section 3.02 are satisfied4.2 were satisfied or waived, such payment shall be applied solely to prepay pay the Loans of, and reimbursement obligations L/C Participations owed to, all non-Defaulting Lenders on a pro rata basis prior to being applied to the prepayment payment of any Loans, or reimbursement obligations L/C Participations owed to, any such Defaulting Lender until such time as all funded and unfunded L/C Participations are held by the Lenders pro rata in accordance with the Commitments hereunder without giving effect to Section 2.19(c)(i). Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post as cash collateral pursuant to this Section 2.19(e) shall be deemed paid to and redirected by such Defaulting Lender. , and each Lender irrevocably consents hereto.
(f) In the event that the Administrative Agent, the Company Borrower and the Issuing Lenders agree Lender each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the LC L/C Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Pro Rata Share; 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 Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s Revolving Credit Commitment having been a Defaulting Lender.
(g) The Borrower may, at its sole expense and on effort, upon notice to such date Lender and the Administrative Agent, require that the Defaulting Lender assign without recourse (in accordance with and subject to the restrictions set forth in Article XII of this Agreement in the case of voluntary assignments by a Lender) all of its interests, rights and obligations under this Agreement to an assignee that shall assume such obligations (which assignee may be another Lender); provided, that (i) such assignee shall have received the prior written approval of the Borrower and the Administrative Agent, which consent shall not be unreasonably withheld, and (ii) such Defaulting Lender shall purchase at par have received payment of an amount equal to the outstanding principal amount of all Obligations owed to it, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (in the case of such outstanding principal and accrued interest) and from the Borrower (in the case of all other amounts).
(h) If (i) a Bankruptcy Event with respect to a Lender Parent of any Lender shall occur following the Loans Closing Date and for so long as such event shall continue or (ii) the Issuing Lender has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Issuing Lender shall not be required to issue, amend or increase any Letter of Credit, unless the other Lenders as Issuing Lender shall have entered into arrangements with the Administrative Agent shall determine may be necessary in order for Borrower or such Defaulting Lender, satisfactory to the Issuing Lender to hold defease any risk to it in respect of such Loans in accordance with its Applicable PercentageLender hereunder.
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Sources: Senior Secured Debtor in Possession Credit Agreement (Superior Energy Services Inc)
Defaulting Lender. Notwithstanding any provision In the event of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion of the Revolving Credit Commitment of such Defaulting Lender pursuant to Section 2.10(a);
(b) the Revolving Credit Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all LendersBorrower, all affected Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.02, other than pursuant to Section 10.02(b)(i), 10.02(b)(ii) or 10.02(b)(iii) that directly affects such Lender), provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lender;
(c) if any LC Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of such LC Exposure shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages but only Borrower’s election may elect to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus terminate such Defaulting Lender’s LC Exposure does not exceed Commitment hereunder; provided that (i) such termination must be of the total of all nonDefaulting Lender’s entire Commitment, (ii) subject to the set-Defaulting Lenders’ Revolving Credit Commitments and (y) the conditions off rights set forth in Section 5.02 are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effectedimmediately following sentence, the Company Borrower shall within one Business Day following notice pay all amounts owed by the Borrower to such Defaulting Lender under this Agreement and under the other Loan Documents (including principal of and interest on the Advances owed to such Defaulting Lender, accrued commitment fees, and letter of credit fees but specifically excluding any amounts owing under Section 2.12 as result of such payment of Advances) and shall deposit with the Administrative Agent into the Cash Collateral Account cash collateralize such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation collateral in the amount required pursuant to clause (i) aboveSection 2.18(c) in accordance with respect of the procedures set forth in Section 2.04(i) for so long as such LC Exposure is outstanding;
(iii) if the Company cash collateralizes any unallocated portion of such Defaulting Lender’s LC Exposure ratable share of the Letter of Credit Exposure; (iii) a Defaulting Lender’s Commitment may be terminated by the Borrower under this Section 2.04(c) if and only if at such time, the Borrower has elected, or is then electing, to terminate the Commitments of all then existing Defaulting Lenders. With respect to the amounts described in clause (ii) above which would be payable by the Borrower to the Defaulting Lender (but not including any deposits that the Borrower is required to make with respect to the Letter of Credit Exposure), the Borrower may set-off and apply any Hedge Termination Amount then owing and due and payable to the Defaulting Lender under any Hedge Contract that has been terminated to the extent such set-off is permitted under such Hedge Contract. Upon written notice to the Defaulting Lender and Administrative Agent of the Borrower’s election to terminate a Defaulting Lender’s Commitment pursuant to this Section 2.18(c), 2.04(c) and the Company shall not be payment and deposit of amounts required to pay any fees to be made by the Borrower under clause (ii) above, (A) such Defaulting Lender pursuant shall cease to Section 2.10(bbe a “Lender” hereunder for all purposes except that such Lender’s rights and obligations under Sections 2.13, 2.14, 8.07, and 9.03(b) shall continue with respect to such Defaulting events and occurrences occurring before or concurrently with its ceasing to be a “Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.18(c), then the fees payable to the Lenders pursuant to Sections 2.10(a) and 2.10(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; or
(v) if any Defaulting Lender’s LC Exposure is neither cash collateralized nor reallocated pursuant to this Section 2.18(c), then, without prejudice to any rights or remedies of any Issuing Lender or any Lender ” hereunder, all commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of B) such Defaulting Lender’s Commitment that was utilized by shall be deemed terminated, and (C) such LC Exposure) and letter Defaulting Lender shall be relieved of credit fees payable its obligations hereunder except as to its obligations under Section 2.10(b) 8.07 shall continue with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Lender” hereunder; provided that, any such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Lender(s) until such LC Exposure is cash collateralized and/or reallocated;
(d) so long as any Lender is a Defaulting Lender, the Issuing Lenders shall termination will not be required deemed to issue, extend, amend be a waiver or increase any Letter of Credit, unless the applicable Issuing Lender is satisfied that the related exposure will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers in accordance with this Section 2.18(c), and participating interests in any such newly issued, extended or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.18(c)(i) (and Defaulting Lenders shall not participate therein); and
(e) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.16(d) but excluding Section 2.17(b)) shall, in lieu of being distributed to such Defaulting Lender, 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 release of any amounts owing claim by such Defaulting Lender to the Administrative Agent hereunderBorrower, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to any Issuing Lender, (iii) third, if so determined by the Administrative Agent or requested by an Issuing Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in any Letter of Credit, (iv) fourth, to the funding of any Loan in respect of which such Defaulting Lender 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 Borrower Representative, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders or an Issuing Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender or such Issuing Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, (vii) seventh, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, and (viii) eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is (x) a prepayment of the principal amount of any Loans or reimbursement obligations in respect of LC Disbursements for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 3.02 are satisfied, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Lender. In the event that the Administrative Agent, the Company and Issuing Lender, the Issuing Lenders agree that a Defaulting Swing Line Lender has adequately remedied all matters that caused or any other Lender may have against such Lender to be a Defaulting Lender. Any reduction and termination of the Commitments pursuant to this Section 2.04(c) shall be permanent, then the LC Exposure with no obligation of the Lenders shall be readjusted to reflect the inclusion of reinstate such Defaulting Lender’s Revolving Credit Commitment and on such date such Defaulting Lender shall purchase at par such of the Loans of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Defaulting Lender to hold such Loans in accordance with its Applicable PercentageCommitments.
Appears in 1 contract
Defaulting Lender. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion of the Revolving Credit Commitment of such Defaulting Lender pursuant to Section 2.10(a);
(b) the Revolving Credit Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, all affected Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.02, other than pursuant to Section 10.02(b)(i), 10.02(b)(ii) or 10.02(b)(iii) that directly affects such Lender), provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lender;
(c) if any LC Exposure exists Swingline Loans are outstanding or any Letter of Credit Outstandings exist at the time such when a Revolving Lender becomes a Defaulting Lender then:
(i) all or any part of the participating risk in such LC Exposure Swingline Loans and Letter of Credit Outstandings shall be reallocated among the nonRevolving Lenders that are Non-Defaulting Revolving Lenders in accordance with their respective Applicable Percentages RL Percentage but only to the extent (x) the sum of all nonRevolving Lenders’ that are Non-Defaulting Lenders’ Revolving Lenders Revolving Extensions of Credit Exposures plus such Defaulting Lender’s LC Exposure does not exceed the total aggregate amount of all nonNon-Defaulting Revolving Lenders’ Revolving Loan Commitments, (y) immediately following the reallocation to a Revolving Lender that is a Non-Defaulting Lender, the Revolving Extensions of Credit Commitments of such Revolving Lender do not exceed its Revolving Loan Commitment at such time and (yz) the conditions set forth in Section 5.02 7.2 are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Company U.S. Borrower shall within one (1) Business Day following notice by the Administrative Agent cash collateralize (x) first, prepay such outstanding Swingline Loans and (y) second, Collateralize in a manner reasonably satisfactory to the applicable Issuing Lender such Defaulting Lender’s LC Exposure RL Percentage of all Letter of Credit Outstandings (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(i) for so long as such LC Exposure is outstandingLetter of Credit Outstandings exist;
(iii) if the Company cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to this Section 2.18(c), the Company U.S. Borrower shall not be required to pay any fees Letter of Credit Fees to such Defaulting Lender pursuant to Section 2.10(b4.1(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralizedRL Percentage of Letter of Credit Outstandings;
(iv) if the LC Exposure participating risk in Letter of Credit Outstandings of the nonNon-Defaulting Lenders is reallocated pursuant to this Section 2.18(c2.17(a), then the fees Letter of Credit Fees payable to the Revolving Lenders pursuant to Sections 2.10(a) and 2.10(bSection 4.1(b) shall be adjusted in accordance with such nonNon-Defaulting Lenders’ Applicable RL Percentages; orand
(v) if any Defaulting Lender’s LC Exposure Lenders’ RL Percentage of Letter of Credit Outstandings is neither cash collateralized Collateralized nor reallocated pursuant to this Section 2.18(c2.17(a), then, without prejudice to any rights or remedies of any Issuing Lender or any Revolving Lender hereunder, all commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion Letter of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees Credit Fees payable under Section 2.10(b4.1(b) with respect to such Defaulting Lender’s LC Exposure RL Percentage of Letter of Credit Outstandings shall be payable to the applicable each Issuing Lender(s) Lender until such LC Exposure portion of such Letter of Credit Outstandings is cash collateralized Collateralized and/or reallocated;.
(db) Notwithstanding anything to the contrary contained in Section 2.1(c) or Section 3, so long as any Revolving Lender is a Defaulting Lender, Lender (i) the Issuing Lenders Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Lender shall be required to issue, extend, amend or increase any Letter of Credit, unless the applicable Issuing Lender it is satisfied that the related exposure will be 100% covered by the Revolving Credit Loan Commitments of the nonNon-Defaulting Lenders and/or cash collateral will be has been provided by the Borrowers U.S. Borrower in accordance with this Section 2.18(c2.17(a), and (ii) participating interests in any such newly issued, extended issued or increased Letter of Credit or newly made Swingline Loan shall be allocated among nonRevolving Lenders that are Non-Defaulting Lenders in a manner consistent with Section 2.18(c)(i2.17(a) (and Defaulting Lenders shall not participate therein); and.
(ec) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.16(d) but excluding Section 2.17(b)) shall, in lieu of being distributed to such Defaulting Lender, 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 Lender to the Administrative Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to any Issuing Lender, (iii) third, if so determined by the Administrative Agent or requested by an Issuing Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in any Letter of Credit, (iv) fourth, to the funding of any Loan in respect of which such Defaulting Lender 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 Borrower Representative, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders or an Issuing Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender or such Issuing Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, (vii) seventh, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, and (viii) eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is (x) a prepayment of the principal amount of any Loans or reimbursement obligations in respect of LC Disbursements for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 3.02 are satisfied, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Lender. In the event that the Administrative Agent, the Company U.S. Borrower, each Issuing Lender and the Issuing Lenders agree Swingline Lender each agrees that a Defaulting Lender has adequately remedied all matters that caused such Revolving Lender to be a Defaulting Lender, then (i) the LC Exposure risk participations in Swingline Loans and Letter of Credit Outstandings of the Revolving Lenders shall be readjusted to reflect the inclusion of such Defaulting Revolving Lender’s Revolving Credit Commitment Loan Commitments and on such date such Defaulting Revolving Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Defaulting Revolving Lender to hold such Revolving Loans in accordance with its Applicable PercentageRL Percentage and (ii) so long as no Event of Default then exists, all funds held as cash collateral pursuant to the Letter of Credit Back-Stop Arrangements shall thereafter be promptly returned to the respective Borrower. If the Revolving Loan Commitments have been terminated, all other Obligations have been paid in full and no Letters of Credit are outstanding, then, so long as no Event of Default then exists, all funds held as cash collateral pursuant to the Letter of Credit Back-Stop Arrangements and the Swingline Back-Stop Arrangements shall thereafter be promptly returned to the respective Borrower.
Appears in 1 contract
Defaulting Lender. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) commitment unused fees shall cease to accrue on the unfunded portion of the Revolving Credit Commitment of such Defaulting Lender pursuant to Section 2.10(a)Lender;
(b) the Revolving Credit Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all the Required Lenders, all affected the Super-Majority Lenders or the Required all Lenders have taken or may take any action hereunder (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 10.0212.01); except (i) such Defaulting Lender's Commitment may not be increased or extended without its consent and (ii) the principal amount of, other than pursuant or interest or fees payable on, Loans and LC Disbursements may not be reduced or excused or the scheduled date of payment may not be postponed as to Section 10.02(b)(i), 10.02(b)(ii) or 10.02(b)(iii) that directly affects such Lender), provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent of without such Defaulting Lender's consent;
(c) if any Swingline Exposure or LC Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure of such LC Exposure Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ ' Revolving Credit Exposures plus such Defaulting Lender’s 's Swingline Exposure and LC Exposure does not exceed the total of all non-Defaulting Lenders’ Revolving Credit ' Commitments and (y) the conditions set forth in Section 5.02 5.02(c) and (d) are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Company Borrowers shall within one Business Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of Issuing Bank only Borrowers' obligations corresponding to such Defaulting Lender’s 's LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(i2.05(j) for so long as such LC Exposure is outstanding;
(iii) if the Company Borrowers cash collateralizes collateralize any portion of such Defaulting Lender’s 's LC Exposure pursuant to this Section 2.18(c)clause (ii) above, the Company Borrowers shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.10(b2.12(b) with respect to such Defaulting Lender’s 's LC Exposure during the period such Defaulting Lender’s 's LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.18(c)clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.10(aSection 2.12(a) and 2.10(b(b) shall be adjusted in accordance with such non-Defaulting Lenders’ ' Applicable Percentages; orand
(v) if all or any portion of such Defaulting Lender’s 's LC Exposure is neither reallocated nor cash collateralized nor reallocated pursuant to this Section 2.18(c)clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Lender Bank or any other Lender hereunder, all commitment unused fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s 's Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.10(b2.12(b) with respect to such Defaulting Lender’s 's LC Exposure shall be payable to Issuing Bank until and to the applicable Issuing Lender(s) until extent that such LC Exposure is reallocated and/or cash collateralized and/or reallocated;collateralized; and
(d) so long as any such Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and Issuing Lenders Bank shall not be required to issue, extend, amend or increase any Letter of Credit, unless the applicable Issuing Lender unless, in each case, it is satisfied that the related exposure and the Defaulting Lender's then outstanding LC Exposure will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers in accordance with this Section 2.18(c4.08(c), and participating interests in any such newly issued, extended made Swingline Loan or any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.18(c)(i4.08(c)(i) (and such Defaulting Lenders Lender shall not participate therein); and
(e) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.16(d) but excluding Section 2.17(b)) shall, in lieu of being distributed to such Defaulting Lender, 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 . If (i) first, a Bankruptcy Event with respect to the payment a Parent of any amounts owing by Lender shall occur following the date hereof and for so long as such Defaulting Lender to the Administrative Agent hereunder, event shall continue or (ii) secondSwingline Lender or Issuing Bank has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, pro rataSwingline Lender shall not be required to fund any Swingline Loan and Issuing Bank shall not be required to issue, to the payment of any amounts owing by such Defaulting Lender to any Issuing Lender, (iii) third, if so determined by the Administrative Agent amend or requested by an Issuing Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in increase any Letter of Credit, (iv) fourthunless Swingline Lender or Issuing Bank, as the case may be, shall have entered into arrangements with Borrowers or such Lender, satisfactory to Swingline Lender or Issuing Bank, as the case may be, to the funding of defease any Loan risk to it in respect of which such Defaulting Lender 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 Borrower Representative, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders or an Issuing Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender or such Issuing Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, (vii) seventh, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, and (viii) eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is (x) a prepayment of the principal amount of any Loans or reimbursement obligations in respect of LC Disbursements for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 3.02 are satisfied, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Lenderhereunder. In the event that the Administrative Agent, the Company Borrowers, Swingline Lender and the Issuing Lenders agree Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Defaulting Lender’s Revolving Credit 's Commitment and on such date such Defaulting Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Defaulting Lender to hold such Loans in accordance with its Applicable Percentage.
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Defaulting Lender. Notwithstanding At any provision of this Agreement to the contrary, if any time when a Lender becomes is then a Defaulting Lender, then the following provisions Borrower, at Borrower's election, may elect to terminate such Defaulting Lender's Commitment hereunder; provided that (A) such termination must be of all of the Defaulting Lender's Commitment, (B) the Borrower shall apply for so long pay all amounts owed by the Borrower to such Defaulting Lender in such Lender's capacity as a Lender under this Agreement and under the other Loan Documents (including principal of and interest on the Advances owed to such Lender is Defaulting Lender, accrued Commitment Fees (subject to Section 2.16(a)(iii)), and letter of credit fees (subject to Section 2.15(a)(iii) but specifically excluding any amounts owing under Section 2.12 as result of such payment of such Advances) and shall deposit with the Administrative Agent into the Cash Collateral Account cash collateral in the amount equal to such Defaulting Lender's Applicable Percentage of the Letter of Credit Exposure (but including any such portion thereof that has been reallocated pursuant to Section 2.15), (C) a Defaulting Lender:
's Commitment may be terminated by the Borrower under this Section 2.1(c)(ii) if and only if at such time, the Borrower has elected, or is then electing, to terminate the Commitments of all then existing Defaulting Lenders, and (aD) commitment fees shall cease no Default has occurred and is continuing at the time of such election and termination. Upon written notice to accrue on the unfunded portion Defaulting Lender and Administrative Agent of the Revolving Credit Borrower's election to terminate a Defaulting Lender's Commitment of such Defaulting Lender pursuant to Section 2.10(a);
this clause (bii) and the Revolving Credit Commitment payment and Revolving Credit Exposure deposit of amounts required to be made by the Borrower under clause (B) and (C) above, (1) such Defaulting Lender shall not cease to be included in determining whether a " Lender" hereunder for all Lenders, all affected Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.02, other than pursuant to Section 10.02(b)(ipurposes except that such Lender's rights and obligations as a Lender under Sections 2.05(d), 10.02(b)(ii2.13, 2.14, 8.03, 9.04 and 9.07 shall continue with respect to events and occurrences occurring before or concurrently with its ceasing to be a " Lender" hereunder, (2) or 10.02(b)(iiisuch Defaulting Lender's Commitment shall be deemed terminated, and (3) that directly affects such Lender), provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lender;
(c) if any LC Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of such LC Exposure shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages but only relieved of its obligations hereunder as a " Lender" except as to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s LC Exposure does not exceed the total of all non-Defaulting Lenders’ Revolving Credit Commitments its obligations under Section 8.03 and (y) the conditions set forth in Section 5.02 are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannotany other obligations that expressly survive, or can only partially, be effected, the Company which obligations shall within one Business Day following notice by the Administrative Agent cash collateralize such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(i) for so long as such LC Exposure is outstanding;
(iii) if the Company cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to this Section 2.18(c), the Company shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.10(b) continue with respect to events and occurrences occurring before or concurrently with its ceasing to be a " Lender" hereunder, provided that, any such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant termination will not be deemed to this Section 2.18(c), then the fees payable to the Lenders pursuant to Sections 2.10(a) and 2.10(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; or
(v) if any Defaulting Lender’s LC Exposure is neither cash collateralized nor reallocated pursuant to this Section 2.18(c), then, without prejudice to any rights a waiver or remedies release of any claim by the Borrower, the Administrative Agent, Issuing Lender or any Lender hereunder, all commitment fees that otherwise would may have been payable to such Defaulting Lender (solely with respect to the portion of against such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.10(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Lender(s) until such LC Exposure is cash collateralized and/or reallocated;
(d) so long as any Lender is a Defaulting Lender, the Issuing Lenders shall not be required to issue, extend, amend or increase any Letter of Credit, unless the applicable Issuing Lender is satisfied that the related exposure will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers in accordance with this Section 2.18(c), and participating interests in any such newly issued, extended or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.18(c)(i) (and Defaulting Lenders shall not participate therein); and
(e) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.16(d) but excluding Section 2.17(b)) shall, in lieu of being distributed to such Defaulting Lender, 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 Lender to the Administrative Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to any Issuing Lender, (iii) third, if so determined by the Administrative Agent or requested by an Issuing Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in any Letter of Credit, (iv) fourth, to the funding of any Loan in respect of which such Defaulting Lender 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 Borrower Representative, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders or an Issuing Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender or such Issuing Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, (vii) seventh, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, and (viii) eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is (x) a prepayment of the principal amount of any Loans or reimbursement obligations in respect of LC Disbursements for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 3.02 are satisfied, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Lender. In the event that the Administrative Agent, the Company and the Issuing Lenders agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Defaulting Lender’s Revolving Credit Commitment and on such date such Defaulting Lender shall purchase at par such of the Loans of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Defaulting Lender to hold such Loans in accordance with its Applicable Percentage.
Appears in 1 contract
Defaulting Lender. Notwithstanding any other provision of in this Agreement to the contrary, if at any time a Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such any Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion of the Revolving Credit Commitment of such Defaulting Lender pursuant to Section 2.10(a);
(b) the Revolving Credit Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, all affected If any Swing Line Advances are outstanding hereunder at any time that one or more Canadian Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.02, other than pursuant to Section 10.02(b)(i), 10.02(b)(ii) or 10.02(b)(iii) that directly affects such Lender), provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent of such is a Defaulting Lender;
(c) if any LC Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) all or any part the participation of such LC Exposure the Defaulting Lenders in the Swing Line Advances (the “Swing Line Shortfall”) shall be reallocated among allocated to the non-Canadian Lenders who are not Defaulting Lenders in accordance with their respective Applicable Percentages but each such Canadian Lender’s Main Facility Rateable Portion, calculated without regard to the Revolving Facility Commitments of any Canadian Lender who is a Defaulting Lender; provided that such allocation may be effected if and only to the extent (x) that such allocation would not cause the sum Equivalent Amount in United States Dollars of the aggregate Advances of a Canadian Lender under the Revolving Facility and the Equivalent Amount in United States Dollars of such Lender’s Main Facility Rateable Portion of all non-Defaulting Lenders’ outstanding Swing Line Advances to exceed its Revolving Credit Exposures plus such Defaulting Lender’s LC Exposure does not exceed the total of all non-Defaulting Lenders’ Revolving Credit Commitments and (y) the conditions set forth in Section 5.02 are satisfied at such time;Facility Commitment; and
(ii) if upon two (2) Banking Days written notice by the reallocation described Administrative agent, Celestica shall immediately prepay the portion of the Swing Line Shortfall which cannot be allocated to a Canadian Lender in clause accordance with Section 2.28(a)(i).
(b) If any Letters of Credit are outstanding at any time that one or more Canadian Lenders is a Defaulting Lender (the Defaulting Lenders’ participation in such Letters of Credit hereinafter referred to as the “Letter of Credit Shortfall”):
(i) above the Letter of Credit Shortfall shall be allocated to the Canadian Lenders who are not Defaulting Lenders in accordance with each such Canadian Lenders’ Main Facility Rateable Portion, calculated without regard to the Revolving Facility Commitments of any Canadian Lender who is a Defaulting Lender; provided that such allocation may be effected if and only to the extent that such allocation would not cause the Equivalent Amount in United States Dollars of the aggregate Advances of a Canadian Lender under the Revolving Facility and the Equivalent Amount in United States Dollars of its Main Facility Rateable Portion of all outstanding Swing Line Advances to exceed its Revolving Facility Commitment; and
(ii) upon written notice by the Administrative Agent, Celestica shall immediately cash collateralize the portion of any Letter of Credit which cannotnot be allocated to a Canadian Lender in accordance with Section 2.28(b)(i) by depositing such amount with the Administrative Agent, on behalf of the Issuing Bank, at or can only partiallybefore 1:00 p.m. Toronto, be effectedCanada time, on the Company shall within one Business Day date that is two (2) Banking Days following notice by the Administrative Agent cash collateralize Agent. Any such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation amount received by the Administrative Agent, on behalf of the Issuing Bank, pursuant to clause Section 2.28(b)(ii) shall be held as collateral security for the repayment of all Obligations in connection with the applicable Letter of Credit and upon the drawing of such Letter of Credit, such amount shall be applied to reimburse the Issuing Bank. The Administrative Agent, on behalf of the Issuing Bank, shall return to Celestica the amount by which the aggregate cash collateral then on deposit with the Administrative Agent pursuant to Section 2.28(b)(ii) together with any interest thereon, exceeds the amount required to be cash collateralized in accordance with Section 2.28(b)(ii), if, at any time (i) abovesuch amount decreases as a result of the termination, reduction or cancellation of a Letter of Credit; (ii) the Defaulting Lender ceases to be a Defaulting Lender; or (iii) the Defaulting Lender is removed or replaced in accordance with the procedures set forth in provisions of Section 2.04(i) for so long as such LC Exposure is outstanding;2.29.
(iiic) if the Company cash collateralizes At any portion of such Defaulting Lender’s LC Exposure pursuant to this Section 2.18(c), the Company shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.10(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.18(c), then the fees payable to the Lenders pursuant to Sections 2.10(a) and 2.10(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; or
(v) if any Defaulting Lender’s LC Exposure is neither cash collateralized nor reallocated pursuant to this Section 2.18(c), then, without prejudice to any rights or remedies of any Issuing Lender or any Lender hereunder, all commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.10(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Lender(s) until such LC Exposure is cash collateralized and/or reallocated;
(d) so long as time any Lender is a Defaulting Lender, the Swing Line Lender shall not be required to fund any Swing Line Advance, and the Issuing Lenders Bank shall not be required to issue, extend, amend or increase any Letter of Credit, unless the applicable Issuing Lender it is satisfied that the related exposure will any payment required to be 100% covered by the Revolving Credit Commitments of the non-Defaulting Lenders and/or made in accordance with Section 2.28(a) or any cash collateral required to be deposited in accordance with Section 2.28(b) has been and/or will be provided by the Borrowers Borrower or Celestica, as applicable, in accordance with this Section 2.18(c), 2.28 and participating interests in any such newly issued, extended Swing Line Advance or increased Letter of Credit shall be allocated among non-the Canadian Lenders who are not Defaulting Lenders in a manner consistent accordance with Section 2.18(c)(i2.28(a) or (and Defaulting Lenders shall not participate thereinb); and, as applicable.
(ed) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees No allocation under this Section 2.28 shall constitute a waiver or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.16(d) but excluding Section 2.17(b)) shall, in lieu of being distributed to such Defaulting Lender, 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 release of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder, (ii) second, pro rata, to the payment claim of any amounts owing by such Defaulting Lender to any Issuing Lender, (iii) third, if so determined by the Administrative Agent or requested by an Issuing Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in any Letter of Credit, (iv) fourth, to the funding of any Loan in respect of which such Defaulting Lender 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 Borrower Representative, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders or an Issuing Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender or such Issuing Lender party hereunder against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, (vii) seventh, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, and (viii) eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is (x) a prepayment of the principal amount of any Loans or reimbursement obligations in respect of LC Disbursements for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 3.02 are satisfied, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Lender. In the event arising from that the Administrative Agent, the Company and the Issuing Lenders agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be having become a Defaulting Lender, then the LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Defaulting Lender’s Revolving Credit Commitment and on such date such Defaulting Lender shall purchase at par such of the Loans of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Defaulting Lender to hold such Loans in accordance with its Applicable Percentage.
Appears in 1 contract
Sources: Credit Agreement (Celestica Inc)
Defaulting Lender. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then so long as such Revolving Lender is a Defaulting Lender: (a) if any Swing Line Exposure or LC Exposure exists at the time a Revolving Lender becomes a Defaulting Lender, the Borrower shall within one Business Day following provisions notice by the Administrative Agent (i) first, prepay such Swing Line Exposure (or, if the Swing Line Lender s shall apply agree, cash collateralize 100% of such Defaulting Lender’s Swing Line Exposure (other than the portion of such Swing Line Exposure referred to in clause (b) of the definition of such term) therein and otherwise in accordance with the procedures set forth in Section 2.04(k) for so long as such Lender Swing Line Exposure is a outstanding) and (ii) second, cash collateralize such Defaulting Lender:
’s LC Exposure in an amount equal to 100% of such LC Exposure and otherwise in accordance with the procedures set forth in Section 2.04(k) for so long as such LC Exposure is outstanding; and (ab) commitment ▇▇▇▇▇ Swing Line Lender shall not be required to fund any Swing Line Loan and the Issuing Lender shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure therein of such Defaulting Lender will be 100% cash collateralized by the Borrower in accordance with this Section; (c) fees shall cease to accrue on the unfunded portion of the Revolving Credit Commitment of such Defaulting Lender pursuant to Section 2.10(a);
; and (bd) the Revolving Credit Exposure and unused Revolving Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, all affected Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 10.02); provided, that this clause (d) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other than pursuant to Section 10.02(b)(i), 10.02(b)(ii) or 10.02(b)(iii) that directly affects such Lender), provided that any waiver, amendment or modification requiring the consent of all Lenders such Lender or each Lender affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lender;
(c) if any LC Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of such LC Exposure shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s LC Exposure does not exceed the total of all non-Defaulting Lenders’ Revolving Credit Commitments and (y) the conditions set forth in Section 5.02 are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Company shall within one Business Day following notice by the Administrative Agent cash collateralize such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(i) for so long as such LC Exposure is outstanding;
(iii) if the Company cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to this Section 2.18(c), the Company shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.10(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.18(c), then the fees payable to the Lenders pursuant to Sections 2.10(a) and 2.10(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; or
(v) if any Defaulting Lender’s LC Exposure is neither cash collateralized nor reallocated pursuant to this Section 2.18(c), then, without prejudice to any rights or remedies of any Issuing Lender or any Lender hereunder, all commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.10(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Lender(s) until such LC Exposure is cash collateralized and/or reallocated;
(d) so long as any Lender is a Defaulting Lender, the Issuing Lenders shall not be required to issue, extend, amend or increase any Letter of Credit, unless the applicable Issuing Lender is satisfied that the related exposure will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers in accordance with this Section 2.18(c), and participating interests in any such newly issued, extended or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.18(c)(i) (and Defaulting Lenders shall not participate therein); and
(e) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.16(d) but excluding Section 2.17(b)) shall, in lieu of being distributed to such Defaulting Lender, 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 Lender to the Administrative Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to any Issuing Lender, (iii) third, if so determined by the Administrative Agent or requested by an Issuing Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in any Letter of Credit, (iv) fourth, to the funding of any Loan in respect of which such Defaulting Lender 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 Borrower Representative, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders or an Issuing Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender or such Issuing Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, (vii) seventh, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, and (viii) eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is (x) a prepayment of the principal amount of any Loans or reimbursement obligations in respect of LC Disbursements for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 3.02 are satisfied, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Lender. In the event that the Administrative Agent, the Company and the Issuing Lenders agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Defaulting Lender’s Revolving Credit Commitment and on such date such Defaulting Lender shall purchase at par such of the Loans of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Defaulting Lender to hold such Loans in accordance with its Applicable Percentagethereby.
Appears in 1 contract
Defaulting Lender. Notwithstanding TC “4.2 Defaulting Lender. “ \f c \l “2” \* MERGEFORMAT AUTONF D3_TCAgent shall not be obligated to transfer to a Defaulting Lender any provision payments received by Agent for the Defaulting Lender’s benefit, nor shall a Defaulting Lender be entitled to the sharing of any payments hereunder (including any principal, interest or fees and whether in respect of Loans, participation interests or otherwise). For purposes of voting or consenting to matters with respect to this Agreement and the other Loan Documents and determining Pro Rata, such Defaulting Lender shall be deemed not to the contrary, if be a “Lender” and such ▇▇▇▇▇▇’s Commitment shall be deemed to be zero (0). At any Lender becomes time that there is a Defaulting Lender, then payments received for application to the following provisions Obligations payable to Lenders (other than the Defaulting Lender) in accordance with the terms of this Agreement shall apply be distributed to such non-defaulting Lenders on a Pro Rata basis calculated after giving effect to the reduction of the Defaulting Lender’s Loan to zero (0) as provided herein or at Agent’s option, Agent may instead receive and retain such amounts that would be otherwise attributable to the Pro Rata share of the Defaulting Lender. To the extent that Agent elects to receive and retain such amounts, Agent may hold them and, in its reasonable discretion, relend such amounts to Borrowers. To the extent that Agent exercises its option to relend such amounts, such amounts shall be treated as Loans for so long the account of Agent in addition to the Loans that are made by Lenders, other than Defaulting Lenders, on a Pro Rata basis as calculated after giving effect to the reduction of the Defaulting Lender’s Commitment to zero (0) as provided herein but shall be repaid in the same order of priority as Protective Advances for purposes of Section 5.7.1 hereof, except as Agent may otherwise elect. Agent shall determine whether any Loans requested shall be made from relending such amounts or from Loans from Lenders other than the Defaulting Lenders and any allocation of requested Loans between them. The rights of a Defaulting Lender is shall be limited as provided herein until such time as the Defaulting Lender (a) has made all payments to Agent of the amounts that it had failed to pay causing it to become a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion of the Revolving Credit Commitment of such Defaulting Lender pursuant to Section 2.10(a);
, (b) has made any other payments as it would have been required to make as a Lender during the Revolving Credit Commitment period that it was a Defaulting Lender other than in respect of the principal amount of Loans, which payments as to the principal amount of Loans shall be settled and Revolving Credit Exposure funded based on the outstanding principal balance of the Loans on the date that Defaulting Lender makes all of the payments required to be made under Section 4.2(a) above or shall be settled and funded by such Lender at such other time thereafter as Agent may specify, and (c) is otherwise in compliance with the terms of this Agreement. Upon the making of such payment or payments by Defaulting Lender with respect to the event that is the basis for it having become a Defaulting Lender, such Lender shall (i) cease to be a Defaulting Lender, (ii) only be entitled to receive the payment of interest (and no other amounts) accrued during the period that such Lender was a Defaulting Lender to the extent previously received and retained by Agent from or for the account of Borrowers relating to the funds constituting Loans funded by such Lender prior to the date that such ▇▇▇▇▇▇ became a Defaulting Lender (and not be included in determining whether all Lenders, all affected Lenders or the Required Lenders have taken or may take any action hereunder (including any consent previously paid to any amendment or waiver pursuant to Section 10.02, other than pursuant to Section 10.02(b)(i), 10.02(b)(ii) or 10.02(b)(iii) that directly affects such Lender), provided that any waiver, amendment or modification requiring (iii) have its Commitment reinstated for all purposes and (iv) fund Loans and settle in respect of the consent Loans and other Obligations in accordance with the terms hereof. The existence of all Lenders or each affected Lender which affects such a Defaulting Lender differently than other affected Lenders and the operation of this Section shall require not be construed to increase or DOCPROPERTY DOCXDOCID DMS=InterwovenIManage Format=<<NUM>>v<<VER>> PRESERVELOCATION \* MERGEFORMAT 11055505v9 otherwise affect the consent Commitment of any Lender, or relieve or excuse (except as otherwise expressly provided herein with respect to such Defaulting Lender;
(c) if the performance by any LC Exposure exists at the time such Lender becomes Borrower or Guarantor of its duties and obligations hereunder. During any period in which there is a Defaulting Lender then:
(i) all with a Commitment, for purposes of computing the amount of the obligation of each non-Defaulting Lender to acquire, refinance or any part fund participations in Letters of Credit the Pro Rata share of each non-Defaulting Lender with a Commitment shall be computed without giving effect to the Commitment of that Defaulting Lender, and such LC Exposure obligation to so acquire, refinance or fund participations in such Letters of Credit shall automatically be reallocated among the non-Defaulting Lenders with Commitments or Commitments, as applicable, upon such Defaulting Lender becoming a Defaulting Lender; provided, that the aggregate obligation of each non-Defaulting Lender to acquire, refinance or fund participations in accordance with their respective Applicable Percentages but only such Letters of Credit shall not exceed the positive difference, if any, of (1) the Commitment of that non-Defaulting Lender minus (2) the aggregate outstanding amount of the Loans of that Lender. With respect to any Letter of Credit fee not required to be paid to any Defaulting Lender pursuant to this Agreement, the extent Borrowers shall (x) the sum of all pay to each non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s LC Exposure does not exceed the total of all non-Defaulting Lenders’ Revolving Credit Commitments and (y) the conditions set forth in Section 5.02 are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Company shall within one Business Day following notice by the Administrative Agent cash collateralize such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(i) for so long as such LC Exposure is outstanding;
(iii) if the Company cash collateralizes any Lender that portion of any such Defaulting Lender’s LC Exposure pursuant to this Section 2.18(c), the Company shall not be required to pay any fees fee otherwise payable to such Defaulting Lender pursuant to Section 2.10(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if the LC Exposure participation in Letters of the non-Defaulting Lenders is Credit that has been reallocated pursuant to this Section 2.18(c), then the fees payable to the Lenders pursuant to Sections 2.10(a) and 2.10(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; or
(v) if any Defaulting Lender’s LC Exposure is neither cash collateralized nor reallocated Lender pursuant to this Section 2.18(c)the preceding sentence, then, without prejudice (y) pay to any rights or remedies the applicable Issuing Bank the amount of any Issuing Lender or any Lender hereunder, all commitment fees that such fee otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.10(b) with respect extent allocable to such Defaulting LenderIssuing Bank’s LC Exposure shall be payable to the applicable Issuing Lender(s) until such LC Exposure is cash collateralized and/or reallocated;
(d) so long as any Lender is a Defaulting Lender, the Issuing Lenders shall not be required to issue, extend, amend or increase any Letter of Credit, unless the applicable Issuing Lender is satisfied that the related fronting exposure will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers in accordance with this Section 2.18(c), and participating interests in any such newly issued, extended or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.18(c)(i) (and Defaulting Lenders shall not participate therein); and
(e) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.16(d) but excluding Section 2.17(b)) shall, in lieu of being distributed to such Defaulting Lender, and (z) not be retained by required to pay 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 remaining amount of any amounts owing by such fee. Subject to Section 15.21 hereof, no reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender to the Administrative Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such with a Commitment arising from that ▇▇▇▇▇▇ having become a Defaulting Lender to any Issuing Lender, (iii) third, if so determined by the Administrative Agent or requested by an Issuing Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of including any participating interest in any Letter of Credit, (iv) fourth, to the funding of any Loan in respect of which such Defaulting Lender 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 Borrower Representative, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders or an Issuing Lender as a result of any judgment claim of a court of competent jurisdiction obtained by any Lender or such Issuing Lender against such non-Defaulting Lender as a result of such Non-Defaulting Lender’s breach of its obligations under this Agreement, (vii) seventh, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers against increased exposure following such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, and (viii) eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is (x) a prepayment of the principal amount of any Loans or reimbursement obligations in respect of LC Disbursements for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 3.02 are satisfied, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Lender. In the event that the Administrative Agent, the Company and the Issuing Lenders agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Defaulting Lender’s Revolving Credit Commitment and on such date such Defaulting Lender shall purchase at par such of the Loans of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Defaulting Lender to hold such Loans in accordance with its Applicable Percentagereallocation.
Appears in 1 contract
Defaulting Lender. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion of the Revolving Credit Commitment of such Defaulting Lender pursuant to Section 2.10(a)2.6;
(b) the Revolving Credit Commitment and Revolving Extensions of Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, all affected Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 10.0210.1); provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other than pursuant to Section 10.02(b)(i), 10.02(b)(ii) or 10.02(b)(iii) that directly affects such Lender), provided that any waiver, amendment or modification requiring the consent of all Lenders such Lender or each Lender affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lenderthereby;
(c) if any LC Swingline Exposure exists or any L/C Obligations exist at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and L/C Obligations of such LC Exposure Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures Extensions of Credits plus such Defaulting Lender’s LC Swingline Exposure and L/C Obligations does not exceed the total of all non-Defaulting Lenders’ Revolving Credit Commitments and (y) the conditions set forth in Section 5.02 are satisfied at such timeCommitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Company Borrower shall within one Business Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize (in the applicable currency) for the benefit of the Issuing Bank only the Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure L/C Obligations (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(i) for so long as such LC Exposure is L/C Obligations are outstanding;
(iii) if the Company Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure L/C Obligations pursuant to this Section 2.18(c)clause (ii) above, the Company Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.10(b) 3.3 with respect to such Defaulting Lender’s LC Exposure L/C Obligations during the period such Defaulting Lender’s LC Exposure is L/C Obligations are cash collateralized;
(iv) if the LC Exposure L/C Obligations of the non-Defaulting Lenders is reallocated pursuant to this Section 2.18(c)clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.10(a) Section 2.6 and 2.10(b) Section 3.3 shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; orand
(v) if all or any portion of such Defaulting Lender’s LC Exposure L/C Obligations is neither reallocated nor cash collateralized nor reallocated pursuant to this Section 2.18(c)clause (i) or (ii) above, then, without prejudice to any rights or remedies of any the Issuing Lender or any other Lender hereunder, all commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.10(b) 3.3 with respect to such Defaulting Lender’s LC Exposure L/C Obligations shall be payable to the applicable Issuing Lender(s) Lender until and to the extent that such LC Exposure is L/C Obligations are reallocated and/or cash collateralized and/or reallocated;collateralized; and
(d) so long as any such Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Lenders Lender shall not be required to issue, extend, amend or increase any Letter of Credit, unless the applicable Issuing Lender it is satisfied that the related exposure and the Defaulting Lender’s then outstanding L/C Obligations will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers Borrower in accordance with this Section 2.18(c2.21(c), and participating interests in any such newly issued, extended made Swingline Loan or any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.18(c)(i2.21(c)(i) (and such Defaulting Lenders Lender shall not participate therein); and
(e) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.16(d) but excluding Section 2.17(b)) shall, in lieu of being distributed to such Defaulting Lender, 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 . If (i) first, a Bankruptcy Event with respect to the payment a Parent of any amounts owing by Lender shall occur following the date hereof and for so long as such Defaulting Lender to the Administrative Agent hereunder, event shall continue or (ii) secondthe Swingline Lender or the Issuing Lender has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, pro ratathe Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Lender shall not be required to issue, to the payment of any amounts owing by such Defaulting Lender to any Issuing Lender, (iii) third, if so determined by the Administrative Agent amend or requested by an Issuing Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in increase any Letter of Credit, (iv) fourthunless the Swingline Lender or the Issuing Lender, as the case may be, shall have entered into arrangements with the Borrower or such Lender, satisfactory to the Swingline Lender or the Issuing Bank, as the case may be, to the funding of defease any Loan risk to it in respect of which such Defaulting Lender 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 Borrower Representative, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders or an Issuing Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender or such Issuing Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, (vii) seventh, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, and (viii) eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is (x) a prepayment of the principal amount of any Loans or reimbursement obligations in respect of LC Disbursements for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 3.02 are satisfied, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Lenderhereunder. In the event that the Administrative Agent, the Company Borrower, the Swingline Lender and the Issuing Lenders agree Lender each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the LC Swingline Exposure and L/C Obligations of the Lenders shall be readjusted to reflect the inclusion of such Defaulting Lender’s Revolving Credit Commitment and on such date such Defaulting Lender shall purchase at par such of the Loans of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Defaulting Lender to hold such Loans in accordance with its Applicable Percentage.
Appears in 1 contract
Defaulting Lender. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion of the Revolving Credit Commitment of such Defaulting Lender pursuant to Section 2.10(a)2.3;
(b) such Defaulting Lender and the Revolving Credit Commitment and Revolving Extensions of Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, all affected the Lenders or the Required Lenders (or any directly affected Lender) have taken or may take any action hereunder (including any consent to any amendment amendment, consent, waiver or waiver other modification pursuant to Section 10.0210.1); provided, that this clause (b) shall not apply in the case of an amendment, waiver or other than pursuant to Section 10.02(b)(i), 10.02(b)(iimodification that has the effect of (i) increasing the amount or 10.02(b)(iii) that directly affects such Lender), provided that any waiver, amendment or modification requiring extending the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent expiration date of such Defaulting Lender;’s Commitment or extending the final scheduled maturity date of any Loan held by such Defaulting Lender, (ii) forgiving or reducing any principal amount of any Loan or any Reimbursement Obligation owing to such Defaulting Lender, or (iii) reducing the stated rate of any interest or fees payable to such Defaulting Lender hereunder, or extending the scheduled date of any payment thereof (for the purpose of clarity, the foregoing clauses (i), (ii), and (iii) shall not include any waiver of a mandatory prepayment and shall not preclude a waiver of applicability of any post-default increases in interest rates).
(c) if any LC Exposure exists L/C Obligations exist at the time such Lender becomes a Defaulting Lender then:
(i) so long as no Event of Default shall have occurred and be continuing at such time all or any part of the L/C Obligations of such LC Exposure Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages (calculated without regard to such Defaulting Lender) but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Extensions of Credit Exposures plus such Defaulting Lender’s LC Exposure L/C Obligations does not exceed the total of all non-Defaulting Lenders’ Revolving Credit Commitments and (y) the conditions set forth in Section 5.02 are satisfied at such timeCommitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Company shall within one Business Day any Loan Party may, at any time and from time to time following notice by the Administrative Agent cash collateralize Agent, Collateralize for the benefit of each Issuing Lender that is not, itself, a Defaulting Lender, the Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure L/C Obligations (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(i) for so long as such LC Exposure is outstanding;
(iii) L/C Obligations are outstanding or, if the Company cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to this Section 2.18(c)sooner, the Company shall not be required to pay any fees to so long as such Defaulting Lender pursuant to Section 2.10(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.18(c), then the fees payable to the Lenders pursuant to Sections 2.10(a) and 2.10(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; or
(v) if any Defaulting Lender’s LC Exposure is neither cash collateralized nor reallocated pursuant to this Section 2.18(c), then, without prejudice to any rights or remedies of any Issuing Lender or any Lender hereunder, all commitment fees that otherwise would have been payable to such remains a Defaulting Lender (solely with respect to it being expressly understood and agreed that all accrued interest on such Collateralization shall be for the portion account of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) the applicable Loan Party and letter of credit fees payable under Section 2.10(b) with respect shall be paid to such Defaulting Lender’s LC Exposure Loan Party at any time and from time to time upon its request therefor; provided, that no Event of Default shall have then occurred and be payable to the applicable Issuing Lender(s) until such LC Exposure is cash collateralized and/or reallocatedcontinuing);
(d) so long as any Lender is a Defaulting Lender, the Issuing Lenders shall not be required to issue, extend, amend or increase any Letter of Credit, unless the applicable Issuing Lender is satisfied that the related exposure will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers in accordance with this Section 2.18(c), and participating interests in any such newly issued, extended or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.18(c)(i) (and Defaulting Lenders shall not participate therein); and
(e) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.16(d) but excluding Section 2.17(b)) shall, in lieu of being distributed to such Defaulting Lender, 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 Lender to the Administrative Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to any Issuing Lender, (iii) third, if so determined by the Administrative Agent or requested by an Issuing Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in any Letter of Credit, (iv) fourth, to the funding of any Loan in respect of which such Defaulting Lender 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 Borrower Representative, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders or an Issuing Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender or such Issuing Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, (vii) seventh, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, and (viii) eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is (x) a prepayment of the principal amount of any Loans or reimbursement obligations in respect of LC Disbursements for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 3.02 are satisfied, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Lender. In the event that the Administrative Agent, the Company and the Issuing Lenders agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Defaulting Lender’s Revolving Credit Commitment and on such date such Defaulting Lender shall purchase at par such of the Loans of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Defaulting Lender to hold such Loans in accordance with its Applicable Percentage.
Appears in 1 contract
Sources: Credit Agreement (General Motors Co)
Defaulting Lender. Notwithstanding any provision provisions of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) commitment fees Fees shall cease to accrue on the unfunded portion of the Revolving Credit Commitment of such Defaulting Lender pursuant to Section 2.10(a2.12(a);.
(b) the Revolving Credit The Commitment and Revolving Credit the LC Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, all affected Lenders or the Required Lenders or Super Majority Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.02, other than pursuant to Section 10.02(b)(i), 10.02(b)(ii) or 10.02(b)(iii) that directly affects such Lender9.02), provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lender;.
(c) if To the extent permitted by applicable law, any prepayments of the Revolving Loans shall be applied to the Revolving Loan Exposure in accordance with the then applicable terms hereof, with each Lender entitled to its Applicable Percentage of such prepayments as calculated after giving effect to the changes thereto as a result of the Defaulting Lender.
(d) If any Swingline Loans or LC Exposure exists or Protective Advance is outstanding at the time such a Lender becomes a Defaulting Lender then:
(i) all or any part of such Swingline Loans, LC Exposure and Protective Advances shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages but only to the extent (xA) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus such the amount of the Applicable Percentage of the Defaulting Lender (determined immediately prior to its being a Defaulting Lender) of Swingline Loans and Protective Advances that it has funded and are outstanding as of the date that it became a Defaulting Lender plus the Defaulting Lender’s LC Exposure does not exceed the total of all non-Defaulting Lenders’ Revolving Credit Commitments and (yB) the conditions set forth in Section 5.02 4.02 are satisfied at such time;
(ii) if the reallocation described in clause paragraph (i) above cannot, or can only partially, be effected, the Company Borrowers shall within one Business Day following notice by the Administrative Agent (A) first, prepay the amount of the Swingline Loans equal to Defaulting Lender’s Applicable Percentage thereof (calculated as in effect immediately prior to it becoming a Defaulting Lender) after giving effect to any partial reallocation pursuant to paragraph (i) above, (B) second, cash collateralize such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause paragraph (i) above) in accordance with the procedures set forth in Section 2.04(iSections 2.06(j) and for so long as any such LC Exposure is outstandingoutstanding and (C) third, cash collateralize such Defaulting Lender’s Applicable Percentage (calculated as in effect immediately prior to it becoming a Defaulting Lender) of such Protective Advances (after giving effect to any partial reallocation pursuant to paragraph (i) above);
(iii) if the Company Borrowers cash collateralizes collateralize any portion of such Defaulting Lender’s LC Exposure pursuant to this Section 2.18(c2.22(d), the Company Borrowers shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.10(b2.12(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is are reallocated pursuant to this Section 2.18(c2.22(d), then the fees payable to the Lenders pursuant to Sections 2.10(a2.12(a) and 2.10(b) (b), as the case may be, shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; or
(v) if any Defaulting Lender’s LC Exposure is neither not cash collateralized nor collateralized, prepaid or reallocated pursuant to this Section 2.18(c2.22(d), then, without prejudice to any rights or remedies of any the applicable Issuing Lender Bank or any Lender hereunder, all commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.10(b2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Lender(s) Bank until such Defaulting Lender’s LC Exposure is cash collateralized and/or reallocated;collateralized.
(de) so So long as any Lender is a Defaulting Lender, the Issuing Lenders Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, extend, create, incur, amend or increase any Letter of Credit, Credit unless the applicable Issuing Lender it is reasonably satisfied that the related exposure will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers in accordance with this Section 2.18(c2.22(d), and participating interests in any such newly issued, extended or increased created Letter of Credit or newly made Swingline Loan shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.18(c)(i2.22(d)(i) (and Defaulting Lenders shall not participate therein); and.
(ef) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.16(d) but excluding Section 2.17(b)) shall, in lieu of being distributed to such Defaulting Lender, 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 Lender to the Administrative Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to any Issuing Lender, (iii) third, if so determined by the Administrative Agent or requested by an Issuing Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in any Letter of Credit, (iv) fourth, to the funding of any Loan in respect of which such Defaulting Lender 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 Borrower Representative, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders or an Issuing Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender or such Issuing Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, (vii) seventh, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, and (viii) eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is (x) a prepayment of the principal amount of any Loans or reimbursement obligations in respect of LC Disbursements for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 3.02 are satisfied, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Lender. In the event that the Administrative Agent, the Company Borrowers, the Issuing Banks and the Issuing Lenders agree Swingline Lender each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Applicable Percentage of Swingline Loans and Protective Advances and LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Defaulting Lender’s Revolving Credit Commitment and on such date such Defaulting Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) or participations in Loans as the Administrative Agent shall determine may be necessary in order for such Defaulting Lender to hold such Loans or participations in accordance with its Applicable Percentage.
Appears in 1 contract
Defaulting Lender. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) commitment fees 4.11.1 The Unused Line Fee shall cease to accrue on the unfunded portion of the Revolving Credit Commitment of such Lender so long as it is a Defaulting Lender (except to the extent it is payable to an Issuing Bank pursuant to Section 2.10(asubsection 4.11.2(v) below);
(b) the Revolving 4.11.2 If any Swingline Loans or Letters of Credit Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, all affected Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.02, other than pursuant to Section 10.02(b)(i), 10.02(b)(ii) or 10.02(b)(iii) that directly affects such Lender), provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lender;
(c) if any LC Exposure exists are outstanding at the time such a Lender becomes a Defaulting Lender then:
(i) (A) the exposure under all or any part of any such LC Exposure Swingline Loans or Letters of Credit shall be reallocated among the applicable non-Defaulting Lenders that are Revolving Credit Lenders in accordance with their respective Applicable Pro Rata Percentages but only to the extent (x) the sum of all such non-Defaulting Lenders’ Revolving Credit Exposures Loans outstanding, plus such Defaulting Lender’s the LC Exposure Amount, plus the aggregate amount of Swingline Loans outstanding does not exceed the total of all such non-Defaulting Lenders’ Revolving Credit Commitments Commitments; and (yB) with respect to any such exposure so reallocated, each applicable non-Defaulting Lender shall be deemed to have irrevocably and unconditionally purchased from the conditions set forth applicable Swingline Lender or Issuing Bank an undivided interest and participation in the portion of each Swingline Loan or Letter of Credit so reallocated, in accordance with the applicable provisions of subsection 2.1.3 and Section 5.02 are satisfied at 2.2. Subject to Section 3.12, no reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Lender having become a Defaulting Lender, including any claim of a Non-Defaulting Lender as a result of such timeNon-Defaulting Lender’s increased exposure following such reallocation;
(ii) if the reallocation reallocations described in clause (i) above cannot, or can only partially, be effected, the Company Borrowers shall within one (1) Business Day following notice by the Administrative Agent cash collateralize such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) (x) first, prepay Swingline Loans in accordance with an amount equal to the procedures set forth product of such Defaulting Lender’s Pro Rata Percentage times the Swingline Loans outstanding, and (y) second, cash collateralize Letters of Credit in Section 2.04(i) for so long as an amount equal to the product of such Defaulting Lender’s Pro Rata Percentage times the total LC Exposure is outstandingAmount;
(iii) if the Company cash collateralizes any portion of such Defaulting Lender’s LC Exposure the Letters of Credit is cash collateralized pursuant to this Section 2.18(c)clause (ii) above, the Company Borrowers shall not be required to pay any fees to such Defaulting Lender pursuant to the Letter of Credit fee described in clause (i) of Section 2.10(b) 3.4 with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure portion so long as it is cash collateralized;
(iv) if any portion of the LC Exposure exposure under Letters of Credit of such Defaulting Lender is reallocated to the non-Defaulting Lenders is reallocated pursuant to this Section 2.18(c)clause (i) above, then the fees payable Letter of Credit fee described in clause (i) of Section 3.4 with respect to the Lenders pursuant such portion so reallocated to Sections 2.10(a) and 2.10(b) shall be adjusted in accordance with each such non-Defaulting Lenders’ Applicable PercentagesLender shall be paid to such non-Defaulting Lender; orand
(v) if any portion of the exposure under Letters of Credit of such Defaulting Lender’s LC Exposure Lender is neither cash collateralized nor reallocated pursuant to this Section 2.18(c)subsection 4.11.2, then, without prejudice to any rights or remedies of any Issuing Lender Bank or any Lender hereunder, all commitment fees the Unused Line Fee that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Revolving Credit Commitment that was utilized by such LC ExposureLetters of Credit) and letter the Letter of credit fees Credit fee described in clause (i) of Section 3.4 payable under Section 2.10(b) with respect to such Defaulting Lender’s LC Exposure Letters of Credit shall be payable to the applicable Issuing Lender(s) Bank until such LC Exposure is Letters of Credit are fully cash collateralized and/or reallocated;.
(d) so 4.11.3 So long as any Lender is a Defaulting Lender, the Issuing Lenders Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, extend, amend or increase any Letter of Credit, unless the applicable Issuing Lender it is satisfied that the related exposure will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers collateralized in accordance with this Section 2.18(c)subsection 4.11.2, and participating interests participations in any such newly issued, extended issued or increased Letter of Credit or newly made Swingline Loan shall be allocated among non-Defaulting Lenders in a manner consistent accordance with Section 2.18(c)(i) their respective Pro Rata Percentages (and Defaulting Lenders shall not participate therein); and.
(e) any 4.11.4 Any amount payable to such a Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.16(d) but excluding Section 2.17(b)subsection 13.5.6) shallmay, in lieu of being distributed to such Defaulting Lender, be retained by the Administrative Agent in a segregated non-interest bearing account and, subject to any applicable requirements of lawApplicable 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 Lender to the Administrative Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to any Issuing LenderBank or Swingline Lender hereunder, (iii) third, if so determined by the Administrative Agent or requested by an Issuing Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in any Letter of Credit, (iv) fourth, to the funding of any Loan or the funding or cash collateralization of any participation in any Swingline Loan or Letter of Credit in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (viv) fifthfourth, if so determined by the Administrative Agent and the Borrower RepresentativeBorrowers, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Loans under this Agreement, (viv) sixthfifth, pro rata, to the payment of any amounts owing to Borrowers or the Lenders or an Issuing Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender Borrower or such Issuing any Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, (vii) seventh, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, Agreement and (viiivi) eighthsixth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided provided, that if such payment is (x) a prepayment of the principal amount of any Loans or reimbursement obligations LC Obligations in respect of LC Disbursements for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 3.02 are satisfiedobligations, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations LC Obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any LoansLoans of, or reimbursement obligations LC Obligations owed to, any Defaulting Lender. .
4.11.5 In the event that the Administrative Agent, the Company Borrowers, Issuing Bank and the Issuing Lenders Swingline Lender agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the LC Exposure exposure of the Lenders under the Swingline Loans and Letters of Credit shall be readjusted to reflect the inclusion of such Defaulting Lender’s Revolving Credit Commitment and on such date such Defaulting Lender shall purchase at par such of the Revolving Credit Loans of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Defaulting Lender to hold such Revolving Credit Loans in accordance with its Applicable Pro Rata Percentage. The rights and remedies against a Defaulting Lender under this Section 4.11 are in addition to other rights and remedies that Borrowers, Administrative Agent, Issuing Bank, Swingline Lender and the non-Defaulting Lenders may have against such Defaulting Lender. The arrangements permitted or required by this Section 4.11 shall be permitted under this Agreement, notwithstanding any limitation on Liens or the pro rata sharing provisions or otherwise.
Appears in 1 contract
Sources: Loan, Security and Guaranty Agreement (Quest Resource Holding Corp)
Defaulting Lender. Notwithstanding any provision (a) If a Lender becomes, and during the period it remains, a Defaulting Lender, the following provisions shall apply: (i) such Defaulting Lenders’ Ratable Share of this Agreement the L/C Exposure and the Swing Line Advances will, subject to the contrarylimitation in the first proviso below, if automatically be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Non-Defaulting Lenders pro rata in accordance with their respective Commitments (such reallocation to be repeated as of any date that a Lender becomes a Defaulting Lender, then whether on the following provisions shall apply for so long as date that such Lender is a Defaulting Lender:
(a) commitment fees shall cease required to accrue on the unfunded portion purchase its participation in any Letter of the Revolving Credit Commitment of such Defaulting Lender pursuant to Section 2.10(aor otherwise);
(b) the Revolving Credit Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, all affected Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.02, other than pursuant to Section 10.02(b)(i), 10.02(b)(ii) or 10.02(b)(iii) that directly affects such Lender), ; provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lender;
(c) if any LC Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of such LC Exposure shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages but only to the extent (xA) the sum of all noneach Non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s LC Exposure does not exceed the total aggregate principal amount of all non-Defaulting Lenders’ Revolving Credit Commitments and (y) the conditions set forth in Section 5.02 are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannotAdvances, or can only partially, be effected, the Company shall within one Business Day following notice by the Administrative Agent cash collateralize such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(i) for so long as such LC Exposure is outstanding;
(iii) if the Company cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to this Section 2.18(c), the Company shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.10(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if the LC Exposure allocated share of the non-Defaulting Lenders is reallocated pursuant to this Section 2.18(c), then the fees payable to the Lenders pursuant to Sections 2.10(a) L/C Exposure and 2.10(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; or
(v) if any Defaulting Lender’s LC Exposure is neither cash collateralized nor reallocated pursuant to this Section 2.18(c), then, without prejudice to any rights or remedies of any Issuing Lender or any Lender hereunder, all commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.10(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Lender(s) until such LC Exposure is cash collateralized and/or reallocated;
(d) so long as any Lender is a Defaulting Lender, the Issuing Lenders shall not be required to issue, extend, amend or increase any Letter of Credit, unless the applicable Issuing Lender is satisfied that the related exposure will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers in accordance with this Section 2.18(c), and participating interests in any such newly issued, extended or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.18(c)(i) (and Defaulting Lenders shall not participate therein); and
(e) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.16(d) but excluding Section 2.17(b)) shall, in lieu of being distributed to such Defaulting Lender, 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 Lender to the Administrative Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to any Issuing Lender, (iii) third, if so determined by the Administrative Agent or requested by an Issuing Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in any Letter of Credit, (iv) fourth, to the funding of any Loan in respect of which such Defaulting Lender 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 Borrower Representative, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders or an Issuing Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender or such Issuing Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, (vii) seventh, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, and (viii) eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is (x) a prepayment share of the principal amount of outstanding Swing Line Advances may not in any Loans or reimbursement obligations in respect event exceed the Commitment of LC Disbursements for which a such Non- Defaulting Lender has funded its participation obligations as in effect at the time of such reallocation and (yB) made at neither such reallocation nor any payment by a time when the conditions set forth in Section 3.02 are satisfied, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all nonNon-Defaulting Lenders pro rata prior to being applied to the prepayment Lender pursuant thereto will constitute a waiver or release of any Loansclaim the Borrower, or reimbursement obligations owed tothe Agent, any Defaulting Lender. In the event that the Administrative AgentIssuing Bank, the Company and the Issuing Lenders agree that a any Swing Line Bank or any other Lender may have against such Defaulting Lender has adequately remedied all matters that caused or cause such Defaulting Lender to be a Non- Defaulting Lender, then the LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Defaulting Lender’s Revolving Credit Commitment and on such date such Defaulting Lender shall purchase at par such of the Loans of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Defaulting Lender to hold such Loans in accordance with its Applicable Percentage.;
Appears in 1 contract
Sources: Credit Agreement (Gatx Corp)
Defaulting Lender. Notwithstanding At any provision of this Agreement to the contrary, if any time when a Lender becomes is then a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) commitment fees shall cease Borrower, at its election, may elect to accrue on the unfunded portion of the Revolving Credit Commitment of such Defaulting Lender pursuant to Section 2.10(a);
(b) the Revolving Credit Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, all affected Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.02, other than pursuant to Section 10.02(b)(i), 10.02(b)(ii) or 10.02(b)(iii) that directly affects such Lender), provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent of terminate such Defaulting Lender;
's Commitment hereunder; provided that (cA) if any LC Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of such LC Exposure shall termination must be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus such of the Defaulting Lender’s LC Exposure does not exceed the total of 's Commitments, (B) Borrower shall pay all non-Defaulting Lenders’ Revolving Credit Commitments and (y) the conditions set forth in Section 5.02 are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Company shall within one Business Day following notice amounts owed by the Administrative Agent cash collateralize such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(i) for so long as such LC Exposure is outstanding;
(iii) if the Company cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to this Section 2.18(c), the Company shall not be required to pay any fees it to such Defaulting Lender pursuant to Section 2.10(b) with respect in such Lender's capacity as a Lender under this Agreement and under the other Credit Documents (including principal of and interest on the Advances owed to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;
, accrued Unused Line Fees (iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant subject to this Section 2.18(c2.18(a)(iii)), then the fees payable to the Lenders pursuant to Sections 2.10(a) and 2.10(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; or
(v) if any Defaulting Lender’s LC Exposure is neither cash collateralized nor reallocated pursuant to this Section 2.18(c), then, without prejudice to any rights or remedies of any Issuing Lender or any Lender hereunder, all commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable (subject to Section 2.18(a)(iii) but specifically excluding any amounts owing under Section 2.10(b2.11 as result of such payment of such Advances) and shall deposit with respect Administrative Agent into the Cash Collateral Account cash collateral in the amount equal to such Defaulting Lender’s LC 's ratable share of the Dollar Equivalent of the Letter of Credit Exposure shall be payable (including any such portion thereof that has been reallocated pursuant to the applicable Issuing Lender(sSection 2.18), (C) until such LC Exposure is cash collateralized and/or reallocated;
(d) so long as any Lender is a Defaulting Lender's Commitments may be terminated by Borrower under this Section 2.1(b)(ii) if and only if at such time, Borrower has elected, or is then electing, to terminate the Issuing Lenders shall not be required to issue, extend, amend or increase any Letter of Credit, unless the applicable Issuing Lender is satisfied that the related exposure will be 100% covered by the Revolving Credit Commitments of the non-all then existing Defaulting Lenders and/or cash collateral will be provided by the Borrowers in accordance with this Section 2.18(c)Lenders, and participating interests in any (D) no Default has occurred and is continuing at the time of such newly issued, extended or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.18(c)(i) (election and Defaulting Lenders shall not participate therein); and
(e) any amount payable termination. Upon written notice to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.16(d) but excluding Section 2.17(b)) shall, in lieu of being distributed to such Defaulting Lender, 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 Lender to the Administrative Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to any Issuing Lender, (iii) third, if so determined by the Administrative Agent or requested by an Issuing Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender and Administrative Agent of any participating interest in any Letter of Credit, Borrower's election to terminate a Defaulting Lender's Commitments pursuant to this clause (iv) fourth, and the payment and deposit of amounts required to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required be made by this Agreement, as determined by the Administrative AgentBorrower under clause (B) and (C) above, (v1) fifth, if so determined by the Administrative Agent and the Borrower Representative, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders or an Issuing Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender or such Issuing Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, (vii) seventh, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, and (viii) eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is (x) a prepayment of the principal amount of any Loans or reimbursement obligations in respect of LC Disbursements for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 3.02 are satisfied, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Lender. In the event that the Administrative Agent, the Company and the Issuing Lenders agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Defaulting Lender’s Revolving Credit Commitment and on such date such Defaulting Lender shall purchase at par cease to be a "Lender" hereunder for all purposes except that such of the Loans of the other Lenders Lender's rights and obligations as the Administrative Agent a Lender under Section 2.11, 2.13, 2.15, 8.4 and 9.1 shall determine may continue with respect to events and occurrences occurring before or concurrently with its ceasing to be necessary in order for a "Lender" hereunder, (2) such Defaulting Lender's Commitments shall be deemed terminated, and (3) such Defaulting Lender shall be relieved of its obligations hereunder as a "Lender" except as to hold such Loans in accordance its obligations under Section 8.4 and 9.1 and any other obligations that expressly survive, which obligations shall continue with respect to events and occurrences occurring before or concurrently with its Applicable Percentageceasing to be a "Lender" hereunder, provided that, any such termination will not be deemed to be a waiver or release of any claim by Borrower, Administrative Agent, Swingline Lenders, Issuing Lenders or any Lender may have against such Defaulting Lender.
Appears in 1 contract
Defaulting Lender. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion of the Revolving Credit Commitment of such Defaulting Lender pursuant to Section 2.10(a);
(b) the Revolving Credit Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, all affected Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.02, other than pursuant to Section 10.02(b)(i), 10.02(b)(ii) or 10.02(b)(iii) that directly affects such Lender), provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lender;
(c) if any LC Exposure exists Letter of Credit Outstandings exist at the time such when a Revolving Lender becomes a Defaulting Lender then:
(i) all or any part of the participating risk in such LC Exposure Letter of Credit Outstandings shall be reallocated among the nonRevolving Lenders that are Non-Defaulting Revolving Lenders in accordance with their respective Applicable Percentages RL Percentage but only to the extent (x) the sum of all non-Revolving Extensions of Credit of all Revolving Lenders that are Non- Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s LC Exposure Lenders does not exceed the total aggregate amount of all nonRevolving Loan Commitments of all Non-Defaulting Revolving Lenders’ , (y) immediately following the reallocation to a Revolving Lender that is a Non-Defaulting Lender, the Revolving Extensions of Credit Commitments of such Revolving Lender do not exceed its Revolving Loan Commitment at such time and (yz) the conditions set forth in Section 5.02 7.2 are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Company Borrower shall within one (1) Business Day following notice by the Administrative Agent cash collateralize Collateralize in a manner reasonably satisfactory to the applicable Issuing Lender such Defaulting Lender’s LC Exposure RL Percentage of all Letter of Credit Outstandings (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(i) for so long as such LC Exposure is outstandingLetter of Credit Outstandings exist;
(iii) if the Company cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to this Section 2.18(c), the Company Borrower shall not be required to pay any fees Letter of Credit Fees to such Defaulting Lender pursuant to Section 2.10(b4.1(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralizedRL Percentage of Letter of Credit Outstandings;
(iv) if the LC Exposure participating risk in Letter of Credit Outstandings of the nonNon-Defaulting Lenders is reallocated pursuant to this Section 2.18(c2.17(a), then the fees Letter of Credit Fees payable to the Revolving Lenders pursuant to Sections 2.10(a) and 2.10(bSection 4.1(b) shall be adjusted in accordance with such nonNon-Defaulting Lenders’ Applicable RL Percentages; orand
(v) if any Defaulting Lender’s LC Exposure Lenders’ RL Percentage of Letter of Credit Outstandings is neither cash collateralized Collateralized nor reallocated pursuant to this Section 2.18(c2.17(a), then, without prejudice to any rights or remedies of any Issuing Lender or any Revolving Lender hereunder, all commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion Letter of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees Credit Fees payable under Section 2.10(b4.1(b) with respect to such Defaulting Lender’s LC Exposure RL Percentage of Letter of Credit Outstandings shall be payable to the applicable each Issuing Lender(s) Lender until such LC Exposure portion of such Letter of Credit Outstandings is cash collateralized and/or Collateralized or reallocated;.
(db) Notwithstanding anything to the contrary contained in Section 2.1(d) or Section 3, so long as any Revolving Lender is a Defaulting Lender, the Lender (i) no Issuing Lenders Lender shall not be required to issue, extend, amend or increase any Letter of Credit, unless the applicable Issuing Lender it is satisfied that the related exposure will be 100100.00% covered by the Revolving Credit Loan Commitments of the nonNon-Defaulting Lenders and/or cash or collateral will be has been provided by the Borrowers Borrower in accordance with this Section 2.18(c2.17(a), and (ii) participating interests in any such newly issued, extended issued or increased Letter of Credit shall be allocated among nonRevolving Lenders that are Non-Defaulting Lenders in a manner consistent with Section 2.18(c)(i2.17(a) (and Defaulting Lenders shall not participate therein); and.
(ec) any amount payable to such In the event that the Administrative Agent, the Borrower, each Issuing Lender agrees that a Defaulting Lender hereunder has adequately remedied all matters that caused such Revolving Lender to be a Defaulting Lender, then (whether i) the risk participations in Letter of Credit Outstandings of the Revolving Lenders shall be readjusted to reflect the inclusion of such Revolving Lender’s Revolving Loan Commitments and on account such date such Revolving Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders as the Administrative Agent shall determine may be necessary in order for such Revolving Lender to hold such Revolving Loans in accordance with its RL Percentage and (ii) so long as no Event of Default then exists, all funds held as Cash Collateral pursuant to the Letter of Credit Back-Stop Arrangements shall thereafter be promptly returned to the Borrower. If the Revolving Loan Commitments have been terminated, all other Obligations have been paid in full and no Letters of Credit are outstanding, then, so long as no Event of Default then exists, all funds held as Cash Collateral pursuant to the Letter of Credit Back-Stop Arrangements shall thereafter be promptly returned to the Borrower.
(d) Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as such Lender is no longer a Defaulting Lender, to the extent permitted by applicable law:
(i) Any payment of principal, interest, fees or otherwise and including any amount that would otherwise be payable other amounts received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to such Section 11 or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 2.16(d) but excluding Section 2.17(b)) shall, in lieu of being distributed to such Defaulting Lender, be retained by the Administrative Agent in a segregated account and, subject to any applicable requirements of law, 13.2 shall be applied at such time or times as may be determined by the Administrative Agent (i) as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder, (ii) ; second, pro rata, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any each Issuing Lender hereunder; third, to Cash Collateralize each Issuing Lender, (iii) third, if so determined by the Administrative Agent or requested by an Issuing Lender, ’s Fronting Exposure with respect to be held in such account as cash collateral for future funding obligations of the Defaulting Lender in accordance with Section 2.17(a)(ii); fourth, as the Borrower may request (so long as no Default or Event of any participating interest in any Letter of Credit, (iv) fourthDefault exists), to the funding of any Loan in respect of which such Defaulting Lender 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 Borrower RepresentativeBorrower, to be held in a deposit account and released pro rata in order to (x) satisfy such account as cash collateral for Defaulting Lender’s potential future funding obligations of the with respect to Loans under this Agreement and (y) Cash Collateralize each Issuing Lender’s future Fronting Exposure with respect to such Defaulting Lender with respect to future Letters of any Loans Credit issued under this Agreement, (vi) in accordance with Section 2.17(a)(ii); sixth, to the payment of any amounts owing to the Lenders Lenders, or an each Issuing Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender or such Issuing Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, (vii) seventhso long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrowers Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, ; and (viii) eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is (x) a prepayment payment of the principal amount of any Loans or reimbursement obligations with respect to Letters of Credit in respect of LC Disbursements for which a such Defaulting Lender has not fully funded its participation obligations appropriate share, and (y) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 3.02 are satisfied7.2 were satisfied and waived, such payment shall be applied solely to prepay pay the Loans of, and reimbursement obligations with respect to Letters of Credit owed to, all nonNon-Defaulting Lenders on a pro rata basis prior to being applied to the prepayment payment of any LoansLoans of, or reimbursement obligations with respect to Letters of Credit owed to, any such Defaulting LenderLender until such time as all Loans and funded and unfunded participations in Letters of Credit are held by the Lenders pro rata in accordance with the applicable Commitments without giving effect to Section 2.17(a)(i). In the event that the Administrative AgentAny payments, the Company and the Issuing Lenders agree that prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post Cash Collateral pursuant to this Section 2.17(d)(i) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
(ii) No Defaulting Lender shall be entitled to receive any fee pursuant to Section 4.1(a) or (b) for any period during which that Lender is a Defaulting Lender (and the Borrower shall not be required to pay any such fee that otherwise would have been required to have been paid to that Defaulting Lender); provided that such Defaulting Lender shall be entitled to receive fees pursuant to Section 4.1(b) for any period during which that Lender is a Defaulting Lender only to extent allocable to its pro rata share of the Stated Amount of Letters of Credit for which it has adequately remedied all matters provided Cash Collateral pursuant to Section 2.17(a).
(iii) With respect to any fees not required to be paid to any Defaulting Lender pursuant to clause (ii) above, the Borrower shall (x) pay to each Non-Defaulting Lender that caused portion of any such fee otherwise payable to such Defaulting Lender with respect to such Defaulting Lender’s participation in Letters of Credit that has been reallocated to such Non-Defaulting Lender pursuant to Section 2.17(a)(i), (y) pay to each Issuing Lender the amount of any such fee otherwise payable to such Defaulting Lender to the extent allocable to each Issuing Lender’s Fronting Exposure to such Defaulting Lender, and (z) not be required to pay the remaining amount of any such fee.
(e) If the Borrower and the Administrative Agent and each Issuing Lender agree in writing that a Lender is no longer a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any Cash Collateral), that Lender will, to the extent applicable, purchase at par that portion of outstanding Loans of the other Lenders 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 to be held pro rata by the Lenders in accordance with the applicable Commitments (without giving effect to Section 2.17(a)(i)), whereupon such Lender will cease to be a Defaulting Lender, then the LC Exposure ; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Lenders shall be readjusted to reflect the inclusion of such Borrower while that Lender was a Defaulting Lender’s Revolving Credit Commitment and on such date such Defaulting Lender shall purchase at par such of ; provided further that except to the Loans of extent otherwise expressly agreed by the other Lenders as the Administrative Agent shall determine may be necessary in order for such affected parties, no change hereunder from Defaulting Lender to hold such Loans in accordance with its Applicable PercentageLender will constitute a waiver or release of any claim of any party hereunder arising from that Lender having been a Defaulting Lender.
Appears in 1 contract
Sources: Amendment and Restatement Agreement (LEGALZOOM.COM, Inc.)
Defaulting Lender. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
: (a) commitment fees shall cease to accrue on the unfunded portion of the Revolving Credit Loan Commitment of such Defaulting Lender pursuant to Section 2.10(a2.14(c)(i);
; (b) the Commitments, Loans and other Revolving Credit Commitment and Revolving Credit Exposure Obligations of such Defaulting Lender shall not be included in determining whether all Lenders, all affected the Required Lenders or the Required Revolving Lenders have taken or may take any action hereunder (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 10.02, other than pursuant to Section 10.02(b)(i9.03), 10.02(b)(ii) or 10.02(b)(iii) that directly affects such Lender), ; provided that any waiverthis clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, amendment waiver or other modification requiring the consent of all Lenders such Lender or each Lender affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lender;
thereby; (c) if any LC Exposure exists Swing Line Obligations or L/C Obligations exist at the time such Lender becomes a Defaulting Lender then:
: (i) all or any part of the Swing Line Obligations and L/C Obligations of such LC Exposure Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages Pro Rata Shares of the Revolving Facility but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures Obligations plus such Defaulting Lender’s LC Exposure Swing Line Obligations and L/C Obligations does not exceed the total of all non-Defaulting Lenders’ Revolving Credit Commitments and (y) the conditions set forth in Section 5.02 are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Company shall within one Business Day following notice by the Administrative Agent cash collateralize such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(i) for so long as such LC Exposure is outstanding;
(iii) if the Company cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to this Section 2.18(c), the Company shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.10(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.18(c), then the fees payable to the Lenders pursuant to Sections 2.10(a) and 2.10(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable PercentagesLoan Commitments; or
(v) if any Defaulting Lender’s LC Exposure is neither cash collateralized nor reallocated pursuant to this Section 2.18(c), then, without prejudice to any rights or remedies of any Issuing Lender or any Lender hereunder, all commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.10(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Lender(s) until such LC Exposure is cash collateralized and/or reallocated;
(d) so long as any Lender is a Defaulting Lender, the Issuing Lenders shall not be required to issue, extend, amend or increase any Letter of Credit, unless the applicable Issuing Lender is satisfied that the related exposure will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers in accordance with this Section 2.18(c), and participating interests in any such newly issued, extended or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.18(c)(i) (and Defaulting Lenders shall not participate therein); and
(e) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.16(d) but excluding Section 2.17(b)) shall, in lieu of being distributed to such Defaulting Lender, 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 Lender to the Administrative Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to any Issuing Lender, (iii) third, if so determined by the Administrative Agent or requested by an Issuing Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in any Letter of Credit, (iv) fourth, to the funding of any Loan in respect of which such Defaulting Lender 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 Borrower Representative, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders or an Issuing Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender or such Issuing Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, (vii) seventh, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, and (viii) eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is (x) a prepayment of the principal amount of any Loans or reimbursement obligations in respect of LC Disbursements for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 3.02 are satisfied, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Lender. In the event that the Administrative Agent, the Company and the Issuing Lenders agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Defaulting Lender’s Revolving Credit Commitment and on such date such Defaulting Lender shall purchase at par such of the Loans of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Defaulting Lender to hold such Loans in accordance with its Applicable Percentage.125 #98412540v7
Appears in 1 contract
Defaulting Lender. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) commitment fees Fees shall cease to accrue on the unfunded portion of the Revolving Credit Loan Commitment of such Defaulting Lender pursuant to Section 2.10(a);Lender.
(b) The Commitment amounts outstanding on the Revolving Credit Commitment and Revolving Credit Exposure Loans of such Defaulting Lender shall not be included in determining whether all Lenders, all affected Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.02, other than pursuant to Section 10.02(b)(i8.2), 10.02(b)(ii) or 10.02(b)(iii) that directly affects such Lender), ; provided that any waiver, amendment or modification requiring the consent of all Lenders Lenders, or each affected Lender which affects such Defaulting Lender differently than other affected Lenders Lenders, shall require the consent of such Defaulting Lender;.
(c) if any LC Exposure exists at If required by the time such Swing Line Lender, the Borrowers shall promptly post cash collateral to the Swing Line Lender becomes a or enter into other arrangements reasonably satisfactory to the Swing Line Lender to eliminate the Swing Line Lender’s risk with respect to the participation of the Defaulting Lender then:
(i) all or any part of such LC Exposure shall be reallocated among in the non-Defaulting Lenders in accordance with their respective Applicable Percentages but only to Swing Line Exposure, and the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s LC Exposure does not exceed the total of all non-Defaulting Lenders’ Revolving Credit Commitments and (y) the conditions set forth in Section 5.02 are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Company shall within one Business Day following notice by the Administrative Agent cash collateralize such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(i) for so long as such LC Exposure is outstanding;
(iii) if the Company cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to this Section 2.18(c), the Company Swing Line Lender shall not be required to pay make any fees to such Defaulting Lender pursuant to Section 2.10(b) with respect to such Defaulting Lender’s LC Exposure during Swing Line Loans until the period such Defaulting Lender’s LC Exposure is cash collateralized;foregoing has been completed.
(ivd) if If required by any Issuing Lender, the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.18(c), then the fees payable Borrowers shall promptly post cash collateral to the Lenders pursuant to Sections 2.10(a) and 2.10(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; or
(v) if any Defaulting Lender’s LC Exposure is neither cash collateralized nor reallocated pursuant to this Section 2.18(c), then, without prejudice to any rights or remedies of any Issuing Lender or any enter into other arrangements reasonably satisfactory to the Issuing Lender hereunder, all commitment fees that otherwise would have been payable to such Defaulting Lender (solely eliminate the Issuing Lender’s risk with respect to the portion participation by the Defaulting Lender in Letters of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) Credit, and letter the Issuing Lender shall not be required to issue any Letters of credit fees payable under Section 2.10(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to Credit until the applicable Issuing Lender(s) until such LC Exposure is cash collateralized and/or reallocated;foregoing has been completed.
(de) so So long as any Lender is a Defaulting Lender, the Swing Line Lender shall not be required to fund any Swing Line Loan and any Issuing Lenders Lender shall not be required to issue, extend, amend or increase any Letter of Credit, unless the applicable Issuing Lender it is satisfied that the related exposure will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers in accordance with this Section 2.18(c), and participating interests in any such newly issued, extended or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.18(c)(i) (and Defaulting Lenders shall not participate therein); andBorrower.
(ef) any amount payable to such Defaulting Lender hereunder under this Agreement (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.16(d) but excluding Section 2.17(b)) this Agreement, shall, in lieu of being distributed to such Defaulting Lender, 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 Lender to the Administrative Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to the Swing Line Lender or any Issuing LenderLender hereunder, (iii) third, if so determined by to the Administrative Agent or requested by an Issuing Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender collateralization of any participating interest in any Swing Line Loan or Letter of CreditCredit (in which case any cash collateral posted by the Borrower pursuant to this Section 2.19 shall be released to the Borrower in an equal amount), (iv) fourth, to the funding of any Loan in respect of which such Defaulting Lender 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 Borrower RepresentativeAgent, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Loans under this Agreement, (viv) sixthfifth, pro rata, to the payment of any amounts owing to the Borrower or the Lenders or an Issuing Lender as a result of any judgment of a court of competent jurisdiction obtained by the Borrower or any Lender or such Issuing Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, (vi) sixth, to the funding of any Revolving Loan for the account of the Defaulting Lender, and (vii) seventh, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, and (viii) eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is .
(xg) a prepayment of the principal amount of any Loans or reimbursement obligations in respect of LC Disbursements for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 3.02 are satisfied, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Lender. In the event that the Administrative Agent, the Company Borrower, any Issuing Lender and the Issuing Lenders agree Swing Line Lender each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the LC Exposure foregoing provisions of this Section 2.19 shall no longer apply.
(h) The Borrower may, at its sole expense and effort, upon notice to such Lender and the Agent, require that the Defaulting Lender assign without recourse (in accordance with and subject to the restrictions set forth in Article XII of this Agreement in the case of voluntary assignments by a Lender) all of its interests, rights and obligations under this Agreement to an assignee that shall assume such obligations (which assignee may be another Lender); provided, that (i) such assignee shall have received the prior written approval of the Lenders Borrower and the Agent, which consent shall not be readjusted to reflect the inclusion of such Defaulting Lender’s Revolving Credit Commitment unreasonably withheld, and on such date (ii) such Defaulting Lender shall purchase at par have received payment of an amount equal to the outstanding principal amount of all Obligations owed to it, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (in the case of such outstanding principal and accrued interest) and from the Borrower (in the case of the Loans of the all other Lenders as the Administrative Agent shall determine may be necessary in order for such Defaulting Lender to hold such Loans in accordance with its Applicable Percentageamounts).
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Defaulting Lender. Notwithstanding At any provision of this Agreement to the contrary, if any time when a Lender becomes is then a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion of the Revolving Credit Commitment of such Defaulting Lender pursuant to Section 2.10(a);
(b) the Revolving Credit Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all LendersBorrower, all affected Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.02, other than pursuant to Section 10.02(b)(i), 10.02(b)(ii) or 10.02(b)(iii) that directly affects such Lender), provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lender;
(c) if any LC Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of such LC Exposure shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages but only Borrower’s election, may elect to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus terminate such Defaulting Lender’s LC Exposure does not exceed Commitment hereunder; provided that (A) such termination must be of the total of all non-Defaulting Lenders’ Revolving Credit Commitments and (y) the conditions set forth in Section 5.02 are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Company shall within one Business Day following notice by the Administrative Agent cash collateralize such Defaulting Lender’s LC Exposure entire Commitment, (after giving effect to any partial reallocation pursuant to clause (iB) above) in accordance with the procedures set forth in Section 2.04(i) for so long as such LC Exposure is outstanding;
(iii) if Borrower shall pay all amounts owed by the Company cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to this Section 2.18(c), the Company shall not be required to pay any fees Borrower to such Defaulting Lender pursuant in such Lender’s capacity as a Lender under this Agreement and under the other Credit Documents (including principal of and interest on the Revolving Advances owed to such Defaulting Lender, accrued Commitment Fees (subject to Section 2.10(b2.8), and letter of credit fees but specifically excluding any amounts owing under Section 2.11 as result of such payment of such Advances) and shall deposit with respect the Administrative Agent into the Cash Collateral Account Cash Collateral in the amount equal to such Defaulting Lender’s LC ratable share of the Letter of Credit Exposure during (including any such Letter of Credit Exposure that has been reallocated pursuant to Section 2.16), (C) a Defaulting Lender’s Commitment may be terminated by the period Borrower under this Section 2.1(b)(ii) if and only if at such time, the Borrower has elected, or is then electing, to terminate the Commitments of all then existing Defaulting Lenders, and (D) such termination shall not be permitted if a Default has occurred and is continuing. Upon written notice to the Defaulting Lender and Administrative Agent of the Borrower’s election to terminate a Defaulting Lender’s Commitment pursuant to this clause (ii) and the payment and deposit of amounts required to be made by the Borrower under clause (B) above, (1) such Defaulting Lender shall cease to be a “Lender” hereunder for all purposes except that such Lender’s rights and obligations as a Lender under Sections 2.12, 2.14, 8.9 and 9.1 shall continue with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Lender” hereunder, (2) such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.18(c), then the fees payable to the Lenders pursuant to Sections 2.10(a) and 2.10(b) Commitment shall be adjusted in accordance deemed terminated, and (3) such Defaulting Lender shall be relieved of its obligations hereunder as a “Lender” except as to its obligations under Section 8.9 shall continue with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Lender” hereunder, provided that, any such non-Defaulting Lenders’ Applicable Percentages; or
(v) if termination will not be deemed to be a waiver or release of any Defaulting claim by Borrower, the Administrative Agent, the Swingline Lender’s LC Exposure is neither cash collateralized nor reallocated pursuant to this Section 2.18(c), then, without prejudice to any rights or remedies of any Issuing Lender or any Lender hereunder, all commitment fees that otherwise would may have been payable to such Defaulting Lender (solely with respect to the portion of against such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.10(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Lender(s) until such LC Exposure is cash collateralized and/or reallocated;
(d) so long as any Lender is a Defaulting Lender, the Issuing Lenders shall not be required to issue, extend, amend or increase any Letter of Credit, unless the applicable Issuing Lender is satisfied that the related exposure will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers in accordance with this Section 2.18(c), and participating interests in any such newly issued, extended or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.18(c)(i) (and Defaulting Lenders shall not participate therein); and
(e) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.16(d) but excluding Section 2.17(b)) shall, in lieu of being distributed to such Defaulting Lender, 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 Lender to the Administrative Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to any Issuing Lender, (iii) third, if so determined by the Administrative Agent or requested by an Issuing Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in any Letter of Credit, (iv) fourth, to the funding of any Loan in respect of which such Defaulting Lender 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 Borrower Representative, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders or an Issuing Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender or such Issuing Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, (vii) seventh, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, and (viii) eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is (x) a prepayment of the principal amount of any Loans or reimbursement obligations in respect of LC Disbursements for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 3.02 are satisfied, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Lender. In the event that the Administrative Agent, the Company and the Issuing Lenders agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Defaulting Lender’s Revolving Credit Commitment and on such date such Defaulting Lender shall purchase at par such of the Loans of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Defaulting Lender to hold such Loans in accordance with its Applicable Percentage.
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Defaulting Lender. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion of the Revolving Credit Commitment The sum of such Defaulting Lender pursuant to Section 2.10(a);
(b) the Lender’s outstanding Revolving Credit Commitment Loans plus its risk participations in outstanding Swingline Loans and Revolving Letter of Credit Exposure of Outstandings (collectively, its “Credit Exposure”) and such Defaulting Lender Lender’s Commitment shall not be included in determining whether all Lenders, all affected Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.02, other than pursuant to Section 10.02(b)(i9.2), 10.02(b)(ii) or 10.02(b)(iii) that directly affects such Lender), ; provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lender;
(b) Subject to clause (c) if any LC Exposure exists at the time such Lender becomes below, a Defaulting Lender then:
(i) shall be deemed to have assigned any and all payments due to it from the Loan Parties, whether on account of outstanding Loans, interest, fees or any part otherwise, to the remaining non-defaulting Lenders for application to, and reduction of, their proportionate shares of all outstanding Obligations until, as a result of application of such LC Exposure assigned payments, the Lenders’ respective Commitment Percentages of all outstanding Obligations shall be reallocated among the non-Defaulting Lenders have returned to those in accordance with their respective Applicable Percentages but only effect immediately prior to such delinquency and without giving effect to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus nonpayment causing such Defaulting Lender’s LC Exposure does not exceed the total of all non-Defaulting Lenders’ Revolving Credit Commitments and (y) the conditions set forth in Section 5.02 are satisfied at such timedelinquency;
(iic) if At the reallocation described in clause (i) above cannot, or can only partially, be effected, the Company shall within one Business Day following notice by the Administrative Agent cash collateralize such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(i) for so long as such LC Exposure is outstanding;
(iii) if the Company cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to this Section 2.18(c), the Company shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.10(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if the LC Exposure option of the non-Defaulting Lenders is reallocated pursuant to this Section 2.18(c)Borrowers, then the fees payable to the Lenders pursuant to Sections 2.10(a) and 2.10(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; or
(v) if any Defaulting Lender’s LC Exposure is neither cash collateralized nor reallocated pursuant to this Section 2.18(c), then, without prejudice to any rights or remedies of any Issuing Lender or any Lender hereunder, all commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.10(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Lender(s) until such LC Exposure is cash collateralized and/or reallocated;
(d) so long as any Lender is a Defaulting Lender, the Issuing Lenders shall not be required to issue, extend, amend or increase any Letter of Credit, unless the applicable Issuing Lender is satisfied that the related exposure will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers in accordance with this Section 2.18(c), and participating interests in any such newly issued, extended or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.18(c)(i) (and Defaulting Lenders shall not participate therein); and
(e) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.16(d) but excluding Section 2.17(b)8.3) shall, in lieu of being distributed to such Defaulting Lender, 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 Agent, (i) first, to the payment of any amounts owing by such Defaulting Lender to the any Administrative Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to any Issuing LenderBank or the Swingline Lender hereunder, (iii) third, if so determined by the Administrative Agent or requested by an Issuing Bank or the Swingline Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender in respect of any existing or future participating interest in any Swingline Loan or Letter of Credit, (iv) fourth, to the funding of any Loan in respect of which such Defaulting Lender 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 Borrower RepresentativeBorrowers, held in such account as cash collateral for future funding obligations of the Defaulting Lender in respect of any Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders or an any Issuing Bank or the Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender or such Issuing Bank or Swingline Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, (vii) seventh, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, and (viiivii) eighthseventh, to such Defaulting Lender or as otherwise directed by a court of competent jurisdictionLender; provided that if such payment is (x) a prepayment of the principal amount of any Loans or reimbursement obligations in respect of LC Disbursements for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 3.02 4.2 are satisfied, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Lender.
(d) The Defaulting Lender’s decision-making and participation rights and rights to payments as set forth in clauses (a) through (c) hereinabove shall be restored only upon the payment by the Defaulting Lender of its Commitment Percentage of any Obligations, any participation obligation, or expenses as to which it is delinquent, together with interest thereon at the rate set forth in Section 2.11 hereof from the date when originally due until the date upon which any such amounts are actually paid.
(e) The non-defaulting Lenders shall also have the right, but not the obligation, in their respective, sole and absolute discretion, to acquire for no cash consideration, (pro rata, based on the respective Commitments of those Lenders electing to exercise such right) the Defaulting Lender’s Commitment to fund future Loans (the “Defaulting Lender’s Future Commitment”). In Upon any such purchase of the event that the Administrative AgentCommitment Percentage of any Defaulting Lender’s Future Commitment, the Company Defaulting Lender’s share in future Loans and its rights under the Loan Documents with respect thereto shall terminate on the date of purchase, and the Issuing Lenders agree that a Defaulting Lender has adequately remedied shall promptly execute all matters that caused documents reasonably requested to surrender and transfer such interest, including, if so requested, an Assignment and Acceptance. Each Defaulting Lender shall indemnify the Agents and each non-defaulting Lender from and against any and all loss, damage or expenses, including but not limited to be reasonable attorneys’ fees and funds advanced by any Agent or by any non-defaulting Lender, on account of a Defaulting Lender, then ’s failure to timely fund its pro rata share of a Loan or to otherwise perform its obligations under the LC Exposure Loan Documents. Nothing contained in this Section 8.13(e) shall be deemed to limit or modify the rights of the Lenders shall be readjusted Borrowers pursuant to reflect the inclusion of such Defaulting Lender’s Revolving Credit Commitment and on such date such Defaulting Lender shall purchase at par such of the Loans of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Defaulting Lender to hold such Loans in accordance with its Applicable PercentageSection 2.30 hereof.
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Sources: Credit Agreement (Brown Shoe Co Inc)
Defaulting Lender. Notwithstanding any provision provisions of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) commitment fees Fees shall cease to accrue on the unfunded portion of the Revolving Credit Commitment of such Defaulting Lender pursuant to Section 2.10(a2.12(a) and, subject to clause (d)(iv) below, on the participation of such Defaulting Lender in Letters of Credit pursuant to Section 2.12(b);.
(b) the Revolving Credit The Commitment and Revolving Credit the LC Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, all affected Lenders or the Required Lenders or Super Majority Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.02, other than pursuant to Section 10.02(b)(i9.02), 10.02(b)(ii) or 10.02(b)(iii) that directly affects such Lender), ; provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than disproportionately and adversely relative to other affected Lenders shall require the consent of such Defaulting Lender;.
(c) if any LC Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of such LC Exposure shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s LC Exposure does not exceed the total of all non-Defaulting Lenders’ Revolving Credit Commitments and (y) the conditions set forth in Section 5.02 are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Company shall within one Business Day following notice by the Administrative Agent cash collateralize such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(i) for so long as such LC Exposure is outstanding;
(iii) if the Company cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to this Section 2.18(c), the Company shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.10(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.18(c), then the fees payable to the Lenders pursuant to Sections 2.10(a) and 2.10(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; or
(v) if any Defaulting Lender’s LC Exposure is neither cash collateralized nor reallocated pursuant to this Section 2.18(c), then, without prejudice to any rights or remedies of any Issuing Lender or any Lender hereunder, all commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.10(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Lender(s) until such LC Exposure is cash collateralized and/or reallocated;
(d) so long as any Lender is a Defaulting Lender, the Issuing Lenders shall not be required to issue, extend, amend or increase any Letter of Credit, unless the applicable Issuing Lender is satisfied that the related exposure will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers in accordance with this Section 2.18(c), and participating interests in any such newly issued, extended or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.18(c)(i) (and Defaulting Lenders shall not participate therein); and
(e) any amount payable to such Defaulting Lender hereunder (whether on account Any payment of principal, interest, fees or otherwise other amounts received by the Administrative Agent for the account of a Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Section 2.11, Section 2.18, Article 7 or otherwise, and including any amount amounts made available to the Administrative Agent by that would otherwise be payable to such Defaulting Lender pursuant to Section 2.16(d) but excluding Section 2.17(b9.09)) shall, in lieu of being distributed to such Defaulting Lender, be retained by the Administrative Agent in a segregated account and, subject to any applicable requirements of law, shall be applied at such time or times as may be determined by the Administrative Agent (i) and, where relevant, the Borrower Agent as follows: first, to the payment of any amounts owing by such that Defaulting Lender to the Administrative Agent hereunder, (ii) ; second, pro rata, to the payment on a pro rata basis of any amounts owing by such that Defaulting Lender to any applicable Issuing Lender, (iii) Banks and Swingline Lenders hereunder; third, if so reasonably determined by the Administrative Agent or reasonably requested by an the applicable Issuing Bank or Swingline Lender, to be held in such account as cash Cash collateral for future funding obligations of the that Defaulting Lender of any participating interest participation in any Swingline Loan or Letter of Credit; fourth, as the Borrower Agent may request (iv) fourthso long as no Default or Event of Default exists), to the funding of any Loan in respect of which such that Defaulting Lender 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 Borrower RepresentativeAgent, to be held in such a deposit account as cash collateral for future funding and released in order to satisfy obligations of the that Defaulting Lender of any to fund Loans under this Agreement, (vi) ; sixth, to the payment of any amounts owing to the Lenders, the Issuing Banks or Swingline Lenders or an Issuing Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender Lender, any Issuing Bank or such Issuing any Swingline Lender against such that Defaulting Lender as a result of such that Defaulting Lender’s breach of its obligations under this Agreement; seventh, (vii) seventhso long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrowers Borrower Agent as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers Borrower Agent against such that Defaulting Lender as a result of such that Defaulting Lender’s breach of its obligations under this Agreement, ; and (viii) eighth, to such that Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is (x) a prepayment payment of the principal amount of any Loans or reimbursement obligations LC Exposure in respect of LC Disbursements for which a that Defaulting Lender has not fully funded its participation obligations appropriate share and (y) such Loans or LC Exposure were made or created at a time when the conditions set forth in Section 3.02 are satisfied4.02 were satisfied or waived, such payment shall be applied solely to prepay pay the Revolver Loans of, and reimbursement obligations LC Exposure owed to, all non-Defaulting Lenders on a pro rata basis prior to being applied to the prepayment payment of any LoansLoans of, or reimbursement obligations LC Exposure owed to, any that Defaulting Lender. In the event that the Administrative AgentAny payments, the Company and the Issuing Lenders agree that prepayments or other amounts paid or payable to a Defaulting Lender has adequately remedied all matters that caused such are applied (or held) to pay amounts owed by a Defaulting Lender or to post Cash collateral pursuant to this Section 2.22(c) shall be a deemed paid to and redirected by that Defaulting Lender, then the and each Lender irrevocably consents hereto.
(d) If any Swingline Loans or LC Exposure of exists or Protective Advance is outstanding at the Lenders shall be readjusted to reflect the inclusion of such Defaulting Lender’s Revolving Credit Commitment and on such date such time a Lender becomes a Defaulting Lender shall purchase at par such of the Loans of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Defaulting Lender to hold such Loans in accordance with its Applicable Percentage.then:
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Defaulting Lender. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion of the Revolving Credit Commitment of such Defaulting Lender pursuant to Section 2.10(a)subsection 4.9;
(b) the Revolving Credit Commitment and Revolving Credit Aggregate Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, all affected Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.02, other than pursuant to Section 10.02(b)(i), 10.02(b)(ii) or 10.02(b)(iii) that directly affects such Lendersubsection 10.1), provided that any waiver, amendment or modification requiring (i) which requires the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected Lenders or (ii) increases or extends such Defaulting Lender’s Commitment, reduces or excuses the principal amount of, or interest or fees payable on, Loans or Letter of Credit disbursements or postpones the scheduled date of payment as to such Defaulting Lender shall require the consent of such Defaulting Lender;
(c) if any LC Swing Line Exposure or L/C Exposure exists at the time such Revolving Lender becomes a Defaulting Lender then:
(i) all or any part of the Swing Line Exposure and L/C Exposure of such LC Exposure Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Revolving Credit Commitment Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Aggregate Revolving Credit Exposures Extensions of Credit and participations in Swing Line Loans plus such Defaulting Lender’s LC Swing Line Exposure and L/C Exposure does not exceed the total of all non-Defaulting Lenders’ Revolving Credit Commitments and (y) the conditions set forth in Section 5.02 are satisfied at such timeCommitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Company shall within one three Business Day Days following notice by the Administrative Agent (x) first, prepay such Swing Line Exposure and (y) second, cash collateralize for the benefit of the Issuing Lender only the Company’s obligations corresponding to such Defaulting Lender’s LC L/C Exposure on terms reasonably satisfactory to the Administrative Agent (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(i) for so long as such LC L/C Exposure is outstanding;
(iii) if the Company cash collateralizes any portion of such Defaulting Lender’s LC L/C Exposure pursuant to this Section 2.18(c)clause (ii) above, the Company shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.10(b) subsection 4.11 with respect to such Defaulting Lender’s LC L/C Exposure during the period such Defaulting Lender’s LC L/C Exposure is cash collateralized;
(iv) if the LC L/C Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.18(c)clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.10(a) subsection 4.9 and 2.10(b) subsection 4.11 shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Revolving Credit Commitment Percentages; orand
(v) if all or any portion of such Defaulting Lender’s LC L/C Exposure is neither reallocated nor cash collateralized nor reallocated pursuant to this Section 2.18(c)clause (i) or (ii) above, then, without prejudice to any rights or remedies of any the Issuing Lender or any other Lender hereunder, all commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.10(b) subsection 4.11 with respect to such Defaulting Lender’s LC L/C Exposure shall be payable to the applicable Issuing Lender(s) Lender until and to the extent that such LC L/C Exposure is reallocated and/or cash collateralized and/or reallocated;collateralized; and
(d) so long as any such Lender is a Defaulting Lender, the Swing Line Lender shall not be required to fund any Swing Line Loan and the Issuing Lenders Lender shall not be required to issue, extend, amend or increase any Letter of Credit, unless the applicable Issuing Lender is satisfied it has received assurances satisfactory to it that the related exposure will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Lenders will cover the related exposure and/or cash collateral will be provided by the Borrowers in accordance with this Section 2.18(c)Borrower, and participating interests in any such newly issued, extended made Swing Line Loan or any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.18(c)(isubsection 4.23(c)(i) (and such Defaulting Lenders Lender shall not participate therein); and
(e) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.16(d) but excluding Section 2.17(b)) shall, in lieu of being distributed to such Defaulting Lender, 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 Lender to the Administrative Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to any Issuing Lender, (iii) third, if so determined by the Administrative Agent or requested by an Issuing Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in any Letter of Credit, (iv) fourth, to the funding of any Loan in respect of which such Defaulting Lender 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 Borrower Representative, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders or an Issuing Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender or such Issuing Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, (vii) seventh, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, and (viii) eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is (x) a prepayment of the principal amount of any Loans or reimbursement obligations in respect of LC Disbursements for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 3.02 are satisfied, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Lender. In the event that the Administrative Agent, the Company Company, the Swing line Lender and the Issuing Lenders agree Lender each agrees that a Defaulting Lender has adequately remedied all matters that caused such Revolving Lender to be a Defaulting Lender, then the LC Swing Line Exposure and L/C Exposure of the Revolving Lenders shall be readjusted to reflect the inclusion of such Defaulting Revolving Lender’s Revolving Credit Commitment and on such date such Defaulting Revolving Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swing Line Loans) as the Administrative Agent shall determine may be necessary in order for such Defaulting Revolving Lender to hold such Revolving Loans in accordance with its Applicable Revolving Credit Commitment Percentage.
Appears in 1 contract
Defaulting Lender. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion of the Revolving Credit Commitment of such Defaulting Lender pursuant to Section 2.10(a);
(b) the Revolving Credit Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, all affected Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.02, other than pursuant to Section 10.02(b)(i), 10.02(b)(ii) or 10.02(b)(iii) that directly affects such Lender), provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lender;
(c) if any LC Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of such LC Exposure shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s LC Exposure does not exceed the total of all non-Defaulting Lenders’ Revolving Credit Commitments and (y) the conditions set forth in Section 5.02 5.03 are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Company shall within one Business Day following notice by the Administrative Agent cash collateralize such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(i) for so long as such LC Exposure is outstanding;
(iii) if the Company cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to this Section 2.18(c), the Company shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.10(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.18(c), then the fees payable to the Lenders pursuant to Sections 2.10(a) and 2.10(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; or
(v) if any Defaulting Lender’s LC Exposure is neither cash collateralized nor reallocated pursuant to this Section 2.18(c), then, without prejudice to any rights or remedies of any Issuing Lender or any Lender hereunder, all commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.10(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Lender(s) until such LC Exposure is cash collateralized and/or reallocated;
(d) so long as any Lender is a Defaulting Lender, the Issuing Lenders shall not be required to issue, extend, amend or increase any Letter of Credit, unless the applicable Issuing Lender is satisfied that the related exposure will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers in accordance with this Section 2.18(c), and participating interests in any such newly issued, extended or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.18(c)(i) (and Defaulting Lenders shall not participate therein); and
(e) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.16(d) but excluding Section 2.17(b)) shall, in lieu of being distributed to such Defaulting Lender, 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 Lender to the Administrative Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to any Issuing Lender, (iii) third, if so determined by the Administrative Agent or requested by an Issuing Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in any Letter of Credit, (iv) fourth, to the funding of any Loan in respect of which such Defaulting Lender 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 Borrower Representative, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders or an Issuing Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender or such Issuing Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, (vii) seventh, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, and (viii) eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is (x) a prepayment of the principal amount of any Loans or reimbursement obligations in respect of LC Disbursements for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 3.02 are satisfied, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Lender. In the event that the Administrative Agent, the Company and the Issuing Lenders agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Defaulting Lender’s Revolving Credit Commitment and on such date such Defaulting Lender shall purchase at par such of the Loans of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Defaulting Lender to hold such Loans in accordance with its Applicable Percentage.competent
Appears in 1 contract
Defaulting Lender. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion of the Revolving Credit Commitment The sum of such Defaulting Lender pursuant to Section 2.10(a);
(b) the Lender’s outstanding Revolving Credit Commitment Loans plus its risk participations in outstanding Swingline Loans and Revolving Letter of Credit Exposure of Outstandings (collectively, its “Credit Exposure”) and such Defaulting Lender Lender’s Commitment shall not be included in determining whether all Lenders, all affected Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.02, other than pursuant to Section 10.02(b)(i9.2), 10.02(b)(ii) or 10.02(b)(iii) that directly affects such Lender), ; provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lender;
(b) Subject to clause (c) if any LC Exposure exists at the time such Lender becomes below, a Defaulting Lender then:
(i) shall be deemed to have assigned any and all payments due to it from the Loan Parties, whether on account of outstanding Loans, interest, fees or any part otherwise, to the remaining non-defaulting Lenders for application to, and reduction of, their proportionate shares of all outstanding Obligations until, as a result of application of such LC Exposure assigned payments, the Lenders’ respective Commitment Percentages of all outstanding Obligations shall be reallocated among the non-Defaulting Lenders have returned to those in accordance with their respective Applicable Percentages but only effect immediately prior to such delinquency and without giving effect to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus nonpayment causing such Defaulting Lender’s LC Exposure does not exceed the total of all non-Defaulting Lenders’ Revolving Credit Commitments and (y) the conditions set forth in Section 5.02 are satisfied at such timedelinquency;
(iic) if At the reallocation described in clause (i) above cannot, or can only partially, be effected, the Company shall within one Business Day following notice by the Administrative Agent cash collateralize such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(i) for so long as such LC Exposure is outstanding;
(iii) if the Company cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to this Section 2.18(c), the Company shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.10(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if the LC Exposure option of the non-Defaulting Lenders is reallocated pursuant to this Section 2.18(c)Borrowers, then the fees payable to the Lenders pursuant to Sections 2.10(a) and 2.10(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; or
(v) if any Defaulting Lender’s LC Exposure is neither cash collateralized nor reallocated pursuant to this Section 2.18(c), then, without prejudice to any rights or remedies of any Issuing Lender or any Lender hereunder, all commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.10(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Lender(s) until such LC Exposure is cash collateralized and/or reallocated;
(d) so long as any Lender is a Defaulting Lender, the Issuing Lenders shall not be required to issue, extend, amend or increase any Letter of Credit, unless the applicable Issuing Lender is satisfied that the related exposure will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers in accordance with this Section 2.18(c), and participating interests in any such newly issued, extended or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.18(c)(i) (and Defaulting Lenders shall not participate therein); and
(e) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.16(d) but excluding Section 2.17(b)8.3) shall, in lieu of being distributed to such Defaulting Lender, 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 Agent, (i) first, to the payment of any amounts owing by such Defaulting Lender to the any Administrative Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to any Issuing LenderBank or the Swingline Lender hereunder, (iii) third, if so determined by the Administrative Agent or requested by an Issuing Bank or the Swingline Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender in respect of any existing or future participating interest in any Swingline Loan or Letter of Credit, (iv) fourth, to the funding of any Loan in respect of which such Defaulting Lender 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 Borrower RepresentativeBorrowers, held in such account as cash collateral for future funding obligations of the Defaulting Lender in respect of any Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders or an any Issuing Bank or the Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender or such Issuing Bank or Swingline Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, (vii) seventh, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, and (viiivii) eighthseventh, to such Defaulting Lender or as otherwise directed by a court of competent jurisdictionLender; provided that if such payment is (x) a prepayment of the principal amount of any Loans or reimbursement obligations in respect of LC Disbursements for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 3.02 4.2 are satisfied, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Lender.
(d) The Defaulting Lender’s decision-making and participation rights and rights to payments as set forth in clauses (a) through (c) hereinabove shall be restored only upon the payment by the Defaulting Lender of its Commitment Percentage of any Obligations, any participation obligation, or expenses as to which it is delinquent, together with interest thereon at the rate set forth in Section 2.11 hereof from the date when originally due until the date upon which any such amounts are actually paid.
(e) The non-defaulting Lenders shall also have the right, but not the obligation, in their respective, sole and absolute discretion, to acquire for no cash consideration, (prorata, based on the respective Commitments of those Lenders electing to exercise such right) the Defaulting Lender’s Commitment to fund future Loans (the “Defaulting Lender’s Future Commitment”). In Upon any such purchase of the event that the Administrative AgentCommitment Percentage of any Defaulting Lender’s Future Commitment, the Company Defaulting Lender’s share in future Loans and its rights under the Loan Documents with respect thereto shall terminate on the date of purchase, and the Issuing Lenders agree that a Defaulting Lender has adequately remedied shall promptly execute all matters that caused documents reasonably requested to surrender and transfer such interest, including, if so requested, an Assignment and Acceptance. Each Defaulting Lender shall indemnify the Agents and each non-defaulting Lender from and against any and all loss, damage or expenses, including but not limited to be reasonable attorneys’ fees and funds advanced by any Agent or by any non-defaulting Lender, on account of a Defaulting Lender, then ’s failure to timely fund its pro rata share of a Loan or to otherwise perform its obligations under the LC Exposure Loan Documents. Nothing contained in this Section 8.13(e) shall be deemed to limit or modify the rights of the Lenders shall be readjusted Borrowers pursuant to reflect the inclusion of such Defaulting Lender’s Revolving Credit Commitment and on such date such Defaulting Lender shall purchase at par such of the Loans of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Defaulting Lender to hold such Loans in accordance with its Applicable PercentageSection 2.30 hereof.
Appears in 1 contract
Sources: Credit Agreement (Brown Shoe Co Inc)
Defaulting Lender. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion of the Revolving Credit Commitment of such Defaulting Lender pursuant to Section 2.10(a);
(b) the Revolving Credit Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, all affected Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.02, other than pursuant to Section 10.02(b)(i), 10.02(b)(ii) or 10.02(b)(iii) that directly affects such Lender), provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lender;
(c) if any LC Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of such LC Exposure shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s LC Exposure does not exceed the total of all non-Defaulting Lenders’ Revolving Credit Commitments and (y) the conditions set forth in Section 5.02 5.03 are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Company shall within one Business Day following notice by the Administrative Agent cash collateralize such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(i) for so long as such LC Exposure is outstanding;
(iii) if the Company cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to this Section 2.18(c), the Company shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.10(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.18(c), then the fees payable to the Lenders pursuant to Sections 2.10(a) and 2.10(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; or
(v) if any Defaulting Lender’s LC Exposure is neither cash collateralized nor reallocated pursuant to this Section 2.18(c), then, without prejudice to any rights or remedies of any Issuing Lender or any Lender hereunder, all commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.10(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Lender(s) until such LC Exposure is cash collateralized and/or reallocated;
(d) so long as any Lender is a Defaulting Lender, the Issuing Lenders shall not be required to issue, extend, amend or increase any Letter of Credit, unless the applicable Issuing Lender is satisfied that the related exposure will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers in accordance with this Section 2.18(c), and participating interests in any such newly issued, extended or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.18(c)(i) (and Defaulting Lenders shall not participate therein); and
(e) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.16(d) but excluding Section 2.17(b)) shall, in lieu of being distributed to such Defaulting Lender, 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 Lender to the Administrative Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to any Issuing Lender, (iii) third, if so determined by the Administrative Agent or requested by an Issuing Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in any Letter of Credit, (iv) fourth, to the funding of any Loan in respect of which such Defaulting Lender 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 Borrower Representative, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders or an Issuing Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender or such Issuing Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, (vii) seventh, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, and (viii) eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is (x) a prepayment of the principal amount of any Loans or reimbursement obligations in respect of LC Disbursements for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 3.02 are satisfied, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Lender. In the event that the Administrative Agent, the Company and the Issuing Lenders agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Defaulting Lender’s Revolving Credit Commitment and on such date such Defaulting Lender shall purchase at par such of the Loans of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Defaulting Lender to hold such Loans in accordance with its Applicable Percentage.
Appears in 1 contract
Defaulting Lender. Notwithstanding At any provision of this Agreement to the contrary, if any time when a Lender becomes is then a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion of the Revolving Credit Commitment of such Defaulting Lender pursuant to Section 2.10(a);
(b) the Revolving Credit Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all LendersBorrower, all affected Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.02, other than pursuant to Section 10.02(b)(i), 10.02(b)(ii) or 10.02(b)(iii) that directly affects such Lender), provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lender;
(c) if any LC Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of such LC Exposure shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages but only Borrower’s election, may elect to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus terminate such Defaulting Lender’s LC Exposure does not exceed Commitment hereunder; provided that (A) such termination must be of the total of all non-Defaulting Lenders’ Revolving Credit Commitments and (y) the conditions set forth in Section 5.02 are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Company shall within one Business Day following notice by the Administrative Agent cash collateralize such Defaulting Lender’s LC Exposure entire Commitment, (after giving effect to any partial reallocation pursuant to clause (iB) above) in accordance with the procedures set forth in Section 2.04(i) for so long as such LC Exposure is outstanding;
(iii) if Borrower shall pay all amounts owed by the Company cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to this Section 2.18(c), the Company shall not be required to pay any fees Borrower to such Defaulting Lender pursuant in such Lender’s capacity as a Lender under this Agreement and under the other Credit Documents (including principal of and interest on the Revolving Advances owed to such Defaulting Lender, accrued Commitment Fees (subject to the proviso Section 2.10(b2.7(a)), and letter of credit fees but specifically excluding any amounts owing under Section 2.10 as result of such payment of such Advances) and shall deposit with respect the Administrative Agent into the Cash Collateral Account cash collateral in the amount equal to such Defaulting Lender’s LC ratable share of the Dollar Equivalent of the Letter of Credit Exposure during the period (including any such Letter of Credit Exposure that has been reallocated pursuant to Section 2.16), and (C) a Defaulting Lender’s LC Exposure is cash collateralized;
(ivCommitment may be terminated by the Borrower under this Section 2.1(b)(ii) if and only if at such time, the LC Exposure Borrower has elected, or is then electing, to terminate the Commitments of all then existing Defaulting Lenders. Upon written notice to the Defaulting Lender and Administrative Agent of the non-Borrower’s election to terminate a Defaulting Lenders is reallocated Lender’s Commitment pursuant to this Section 2.18(c), then the fees payable to the Lenders pursuant to Sections 2.10(aclause (ii) and 2.10(bthe payment and deposit of amounts required to be made by the Borrower under clause (B) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; or
and (vC) if any Defaulting Lender’s LC Exposure is neither cash collateralized nor reallocated pursuant to this Section 2.18(c)above, then, without prejudice to any rights or remedies of any Issuing Lender or any Lender hereunder, all commitment fees that otherwise would have been payable to (1) such Defaulting Lender (solely shall cease to be a “Lender” hereunder for all purposes except that such Lender’s rights and obligations as a Lender under Sections 2.11, 2.13, 8.5 and 9.2 shall continue with respect to the portion of events and occurrences occurring before or concurrently with its ceasing to be a “Lender” hereunder, (2) such Defaulting Lender’s Commitment that was utilized by shall be deemed terminated, and (3) such LC ExposureDefaulting Lender shall be relieved of its obligations hereunder as a “Lender” except as to its obligations Section 8.5 and Section 9.2(d) and letter of credit fees payable under Section 2.10(b) which obligations shall continue with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Lender” hereunder, provided that, any such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Lender(s) until such LC Exposure is cash collateralized and/or reallocated;
(d) so long as any Lender is a Defaulting Lender, the Issuing Lenders shall termination will not be required deemed to issue, extend, amend be a waiver or increase release of any Letter of Credit, unless the applicable Issuing Lender is satisfied that the related exposure will be 100% covered claim by the Revolving Credit Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers in accordance with this Section 2.18(c)Borrower, and participating interests in any such newly issued, extended or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.18(c)(i) (and Defaulting Lenders shall not participate therein); and
(e) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.16(d) but excluding Section 2.17(b)) shall, in lieu of being distributed to such Defaulting Lender, 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 Lender to the Administrative Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to any Issuing Lender, (iii) third, if so determined by the Administrative Agent or requested by an Issuing Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in any Letter of Credit, (iv) fourth, to the funding of any Loan in respect of which such Defaulting Lender 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 Borrower Representative, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders or an Issuing Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender or such Issuing Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, (vii) seventh, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, and (viii) eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is (x) a prepayment of the principal amount of any Loans or reimbursement obligations in respect of LC Disbursements for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 3.02 are satisfied, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Lender. In the event that the Administrative Agent, the Company and the Swing Line Lenders, Issuing Lenders agree that a Defaulting or any Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the LC Exposure of the Lenders shall be readjusted to reflect the inclusion of may have against such Defaulting Lender’s Revolving Credit Commitment and on such date such Defaulting Lender shall purchase at par such of the Loans of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Defaulting Lender to hold such Loans in accordance with its Applicable Percentage.
Appears in 1 contract
Defaulting Lender. Notwithstanding any provision of this Agreement to the contrary, if If any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) commitment fees such Defaulting Lender’s Revolving Commitment and outstanding Revolving Loans shall cease be excluded for purposes of calculating the fee payable to accrue on the unfunded portion Lenders in respect of the Unused Line Fee, and such Defaulting Lender shall not be entitled to receive any Unused Line Fee with respect to such Defaulting Lender’s Revolving Credit Commitment or Revolving Loans (in each case not including any fee in connection with any portion of such Defaulting Lender Lenders Revolving Commitment that has been reallocated to non-Defaulting Lenders pursuant to Section 2.10(a10.21(d) hereof);.
(b) the Revolving Credit Commitment Commitments and Revolving Credit Exposure Loans of such Defaulting Lender shall not be included in determining whether all Lenders, all affected Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.02, other than pursuant to Section 10.02(b)(i10.5), 10.02(b)(ii) or 10.02(b)(iii) that directly affects such Lender), provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lender;.
(c) if any LC Exposure exists at in the time such Lender becomes event a Defaulting Lender then:
(i) all or has defaulted on its obligation to fund any part of such LC Exposure shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s LC Exposure does not exceed the total of all non-Defaulting Lenders’ Revolving Credit Commitments and (y) the conditions set forth in Section 5.02 are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannotLoan, or can only partially, be effected, the Company shall within one Business Day following notice by the Administrative Agent cash collateralize such Defaulting Lender’s LC Exposure (after giving effect to purchase any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(i) for so long as such LC Exposure is outstanding;
(iii) if the Company cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to this Section 2.18(c), the Company shall not be required to pay any fees to such Defaulting Lender participation pursuant to Section 2.10(b) 1.5 hereof, until such time as the Default Excess with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant Lender has been reduced to this Section 2.18(c)zero, then the fees payable to the Lenders pursuant to Sections 2.10(a) and 2.10(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; or
(v) if any Defaulting Lender’s LC Exposure is neither cash collateralized nor reallocated pursuant to this Section 2.18(c), then, without prejudice to any rights prepayments or remedies of any Issuing Lender or any Lender hereunder, all commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.10(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Lender(s) until such LC Exposure is cash collateralized and/or reallocated;
(d) so long as any Lender is a Defaulting Lender, the Issuing Lenders shall not be required to issue, extend, amend or increase any Letter of Credit, unless the applicable Issuing Lender is satisfied that the related exposure will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers in accordance with this Section 2.18(c), and participating interests in any such newly issued, extended or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.18(c)(i) (and Defaulting Lenders shall not participate therein); and
(e) any amount payable to such Defaulting Lender hereunder (whether repayments on account of principalthe Revolving Loans or participations pursuant to Section 1.5, interest, fees or otherwise and including any amount that in each case to the extent they would be otherwise be payable to such Defaulting Lender pursuant to Section 2.16(d) but excluding Section 2.17(b)) shall, in lieu of being distributed to such Defaulting Lender, be retained by the Administrative Agent in a segregated account and, subject to any applicable requirements of law, shall 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 Lender to the Administrative Agent hereunder, (ii) ; second, pro rata, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any the Issuing Lender, (iii) Bank or Letter of Credit guarantor/indemnitor hereunder; third, if so determined by the Administrative Agent or requested by an Issuing Lender, to be held in such account as provide cash collateral for future funding obligations in the amount of 103% of the Defaulting Lender of any participating interest in any Issuing Bank’s (or the Letter of CreditCredit guarantor/indemnitor’s, as the case may be) Fronting Exposure with respect to such Defaulting Lender; fourth, as the Borrowers may request (iv) fourthso long as no Default or Event of Default exists), to the funding of any Loan in respect of which such Defaulting Lender 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 Borrower RepresentativeBorrowers, to be held in a deposit account and released pro rata in order to (x) satisfy such account as cash collateral for Defaulting Lender’s potential future funding obligations of the Defaulting Lender of any with respect to Loans under this Agreement and (y) provide cash collateral in the amount of 103% of the Issuing Bank’s (or the Letter of Credit guarantor/indemnitor’s, as the case may be) future Fronting Exposure with respect to such Defaulting Lender with respect to future Letters of Credit issued under this Agreement, (vi) ; sixth, to the payment of any amounts owing to the Lenders Lenders, the Issuing Bank or an Issuing Lender the Letter of Credit guarantor/indemnitor as a result of any judgment of a court of competent jurisdiction obtained by any Lender Lender, the Issuing Bank or such Issuing Lender the Letter of Credit guarantor/indemnitor against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, (vii) seventhso long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, ; and (viii) eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that provided, that, if (x) such payment is (x) a prepayment payment of the principal amount of any Loans or reimbursement obligations Letter of Credit Balance in respect of LC Disbursements for which a such Defaulting Lender has not fully funded its participation obligations appropriate share and (y) such Loans or Letter of Credit Balance were made at a time when the conditions set forth in Section 3.02 are satisfied1.6 were satisfied or waived, such payment shall be applied solely to prepay pay the Loans of, and reimbursement obligations Letter of Credit Balance owed to, all non-Defaulting Lenders on a pro rata basis prior to being applied to the prepayment payment of any LoansLoans of, or reimbursement obligations Letter of Credit Balance owed to, such Defaulting Lender. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 10.21(c) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
(d) If any Letter of Credit Balance exists at the time a Lender becomes a Defaulting Lender then:
(i) so long as no Default or Event of Default then exists, all or any part of such Letter of Credit Balance shall be reallocated among the non-Defaulting Lenders in accordance with their respective Pro Rata Shares of the total Revolving Commitments (calculated without regard to such Defaulting Lender’s Revolving Commitments), provided that no Lender’s Revolving Exposure shall exceed its Revolving Commitment;
(ii) if the reallocation described in paragraph (i) above cannot, or can only partially, be effected, the Borrowers shall within one (1) Business Day following notice by Agent, cash collateralize such Defaulting Lender’s Pro Rata Share of Letter of Credit Balance (after giving effect to any partial reallocation pursuant to paragraph (i) above) for so long as any such Letter of Credit Balance remains are outstanding;
(iii) if the Borrowers cash collateralize any portion of such Defaulting Lender’s Pro Rata Share of the Letter of Credit Balance pursuant to this Section 10.21(d), the Borrowers shall not be required to pay any Letter of Credit Fees to such Defaulting Lender with respect to the portion of such Defaulting Lender’s Pro Rata Share of the Letter of Credit Balance which have been cash collateralized (and the Defaulting Lender shall not be entitled to receive any such fees);
(iv) if the Defaulting Lender’s Pro Rata Share of the Letter of Credit Balance is reallocated pursuant to this Section 10.21(d), then the Letter of Credit Fees payable to the non-Defaulting Lenders shall be adjusted accordingly; and
(v) if any Defaulting Lender. ’s Pro Rata Share of the Letter of Credit Balance is not cash collateralized or reallocated pursuant to this Section 10.21(d), then without prejudice to any rights or remedies of the applicable Letter of Credit guarantor/indemnitor or Issuing Bank hereunder, all Letter of Credit Fees payable hereunder with respect to such Defaulting Lender’s Pro Rata Share of the Letter of Credit Balance shall be payable to the Issuing Bank or if applicable, the Letter of Credit guarantor/indemnitor.
(e) So long as any Lender is a Defaulting Lender, no Issuing Bank or Letter of Credit guarantor/indemnitor shall be required to issue, extend or increase any Letter of Credit or Letter of Credit Guaranty, in each case unless it is reasonably satisfied that the related exposure will be 100% covered by the Revolving Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers, and participating interests in any such newly issued, extended or increased Letter of Credit or Letter of Credit guaranty/indemnification shall be allocated among non-Defaulting Lenders in a manner consistent with Section 10.21(d) (and Defaulting Lenders shall not participate therein).
(f) No reallocation permitted pursuant to Section 10.21(d) shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Lender having become a Defaulting Lender, including any claim of a non-Defaulting Lender as a result of such non-Defaulting Lender’s increased exposure following such reallocation.
(g) In the event that the Administrative Agent, the Company Issuing Bank and the Issuing Lenders agree Letter of Credit guarantor/indemnitor each agrees in writing that a Defaulting Lender has adequately remedied all matters that which caused such Lender to be become a Defaulting Lender, then the LC Exposure Pro Rata Shares of the Letter of Credit Balance of the Lenders shall be readjusted to reflect the inclusion of such Defaulting Lender’s Revolving Credit Commitment and on such date such Defaulting Lender shall purchase at par such of the Revolving Loans of the other Lenders or participations in the Revolving Loans as the Administrative Agent shall determine may be necessary in order for such Defaulting Lender to hold such Revolving Loans or participations in accordance with its Applicable PercentagePro Rata Share; provided, that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers while that Lender was a Defaulting Lender; provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender having been a Defaulting Lender.
(h) The rights and remedies with respect to a Defaulting Lender under this Section 10.21 are in addition to any other rights and remedies which the Borrowers, Agent, the Issuing Bank or the Letter of Credit guarantor/indemnitor, as applicable, may have against such Defaulting Lender.
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Defaulting Lender. Notwithstanding At any provision of this Agreement to the contrary, if any time when a Revolving Lender becomes is then a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion of the Revolving Credit Commitment of such Defaulting Lender pursuant to Section 2.10(a);
(b) the Revolving Credit Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all LendersBorrower, all affected Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.02, other than pursuant to Section 10.02(b)(i), 10.02(b)(ii) or 10.02(b)(iii) that directly affects such Lender), provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lender;
(c) if any LC Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of such LC Exposure shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages but only Borrower’s election, may elect to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus terminate such Defaulting Lender’s LC Exposure does not exceed Revolving Commitment hereunder; provided that (A) such termination must be of the total of all non-Defaulting Lenders’ Revolving Credit Commitments and (y) the conditions set forth in Section 5.02 are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Company shall within one Business Day following notice by the Administrative Agent cash collateralize such Defaulting Lender’s LC Exposure entire Revolving Commitment, (after giving effect to any partial reallocation pursuant to clause (iB) above) in accordance with the procedures set forth in Section 2.04(i) for so long as such LC Exposure is outstanding;
(iii) if Borrower shall pay all amounts owed by the Company cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to this Section 2.18(c), the Company shall not be required to pay any fees Borrower to such Defaulting Lender pursuant in such Lender’s capacity as a Revolving Lender under this Agreement and under the other Credit Documents (including principal of and interest on the Revolving Advances owed to such Defaulting Lender, accrued Commitment Fees (subject to the proviso Section 2.10(b2.7(a)), and letter of credit fees but specifically excluding any amounts owing under Section 2.10 as result of such payment of such Revolving Advances) and shall deposit with respect the Administrative Agent into the Cash Collateral Account cash collateral in the amount equal to such Defaulting Lender’s LC ratable share of the Dollar Equivalent of the Letter of Credit Exposure during (including any such Letter of Credit Exposure that has been reallocated pursuant to Section 2.16), and (C) a Defaulting Lender’s Revolving Commitment may be terminated by the period Borrower under this Section 2.1(c)(iii) if and only if at such time, (x) the Borrower has elected, or is then electing, to terminate the Revolving Commitments of all then existing Defaulting Lenders and (y) no Default has occurred and is continuing. Upon written notice to the Defaulting Lender and Administrative Agent of the Borrower’s election to terminate a Defaulting Lender’s Revolving Commitment pursuant to this clause (ii) and the payment and deposit of amounts required to be made by the Borrower under clause (B) and (C) above, (1) such Defaulting Lender shall cease to be a “Revolving Lender” hereunder for all purposes except that such Revolving Lender’s rights and obligations as a Revolving Lender under Sections 2.11, 2.13, 8.5 and 9.2 shall continue with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Revolving Lender” hereunder, (2) such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.18(c), then the fees payable to the Lenders pursuant to Sections 2.10(a) and 2.10(b) Revolving Commitment shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; or
deemed terminated, and (v3) if any Defaulting Lender’s LC Exposure is neither cash collateralized nor reallocated pursuant to this Section 2.18(c), then, without prejudice to any rights or remedies of any Issuing Lender or any Lender hereunder, all commitment fees that otherwise would have been payable to such Defaulting Lender (solely shall be relieved of its obligations hereunder as a “Revolving Lender” except as to its obligations Section 8.5 and Section 9.2(d) which obligations shall continue with respect to the portion of events and occurrences occurring before or concurrently with its ceasing to be a “Revolving Lender” hereunder, provided that, any such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.10(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Lender(s) until such LC Exposure is cash collateralized and/or reallocated;
(d) so long as any Lender is a Defaulting Lender, the Issuing Lenders shall termination will not be required deemed to issue, extend, amend be a waiver or increase release of any Letter of Credit, unless the applicable Issuing Lender is satisfied that the related exposure will be 100% covered claim by the Revolving Credit Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers in accordance with this Section 2.18(c)Borrower, and participating interests in any such newly issued, extended or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.18(c)(i) (and Defaulting Lenders shall not participate therein); and
(e) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.16(d) but excluding Section 2.17(b)) shall, in lieu of being distributed to such Defaulting Lender, 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 Lender to the Administrative Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to any Issuing Lender, (iii) third, if so determined by the Administrative Agent or requested by an Issuing Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in any Letter of Credit, (iv) fourth, to the funding of any Loan in respect of which such Defaulting Lender 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 Borrower Representative, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders or an Issuing Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender or such Issuing Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, (vii) seventh, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, and (viii) eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is (x) a prepayment of the principal amount of any Loans or reimbursement obligations in respect of LC Disbursements for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 3.02 are satisfied, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Lender. In the event that the Administrative Agent, the Company and the Swing Line Lender, Issuing Lenders agree that a Defaulting or any Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the LC Exposure of the Lenders shall be readjusted to reflect the inclusion of may have against such Defaulting Lender’s Revolving Credit Commitment . Notwithstanding anything herein to the contrary, the termination of commitments, rights and on such date such Defaulting obligations provided for in this clause (iii) shall not affect rights and obligations that a Lender shall purchase at par such of the Loans of the other Lenders may have in its capacity as the Administrative Agent shall determine may be necessary in order for such Defaulting Lender to hold such Loans in accordance with its Applicable Percentagea Term Lender.
Appears in 1 contract
Defaulting Lender. Notwithstanding At any provision of this Agreement to the contrary, if any time when a Lender becomes is then a Defaulting Lender, then Borrower, at its election, may elect to terminate such Defaulting ▇▇▇▇▇▇’s Commitment hereunder; provided that (A) such termination must be of all of the following provisions Defaulting Lender’s Commitments, (B) Borrower shall apply for so long pay all amounts owed by it to such Defaulting Lender in such Lender’s capacity as a Lender under this Agreement and under the other Credit Documents (including principal of and interest on the Advances owed to such Defaulting Lender, accrued Unused Line Fees (subject to Section 2.18(a)(iii)), and letter of credit fees (subject to Section 2.18(a)(iii) but specifically excluding any amounts owing under Section 2.11 as result of such payment of such Advances)) and, if such Defaulting Lender is a Defaulting Revolving Lender:
(a) commitment fees , shall cease to accrue on the unfunded portion of the Revolving Credit Commitment of such Defaulting Lender pursuant to Section 2.10(a);
(b) the Revolving Credit Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, all affected Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.02, other than pursuant to Section 10.02(b)(i), 10.02(b)(ii) or 10.02(b)(iii) that directly affects such Lender), provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lender;
(c) if any LC Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of such LC Exposure shall be reallocated among the non-Defaulting Lenders in accordance deposit with their respective Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s LC Exposure does not exceed the total of all non-Defaulting Lenders’ Revolving Credit Commitments and (y) the conditions set forth in Section 5.02 are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Company shall within one Business Day following notice by the Administrative Agent into the Cash Collateral Account cash collateralize such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) collateral in accordance with the procedures set forth in Section 2.04(i) for so long as such LC Exposure is outstanding;
(iii) if the Company cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to this Section 2.18(c), the Company shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.10(b) with respect amount equal to such Defaulting Lender’s LC ratable share of the Dollar equivalent of the Letter of Credit Exposure during (including any such portion thereof that has been reallocated pursuant to Section 2.18), (C) a Defaulting Lender’s Commitments may be terminated by Borrower under this Section 2.1(c)(iii) if and only if at such time, Borrower has elected, or is then electing, to terminate the period Commitments of all then existing Defaulting Lenders, and (D) no Default has occurred and is continuing at the time of such election and termination. Upon written notice to the Defaulting Lender and Administrative Agent of ▇▇▇▇▇▇▇▇’s election to terminate a Defaulting Lender’s Commitments pursuant to this clause (iv) and the payment and deposit of amounts required to be made by Borrower under clause (B) above, (1) such Defaulting Lender shall cease to be a “Lender” hereunder for all purposes except that such ▇▇▇▇▇▇’s rights and obligations as a Lender under Sections 2.11, 2.13, 2.15, 8.4 and 9.1 shall continue with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Lender” hereunder, (2) such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.18(c), then the fees payable to the Lenders pursuant to Sections 2.10(a) and 2.10(b) Commitments shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; or
(v) if any Defaulting Lender’s LC Exposure is neither cash collateralized nor reallocated pursuant to this Section 2.18(c), then, without prejudice to any rights or remedies of any Issuing Lender or any Lender hereunder, all commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.10(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Lender(s) until such LC Exposure is cash collateralized and/or reallocated;
(d) so long as any Lender is a Defaulting Lender, the Issuing Lenders shall not be required to issue, extend, amend or increase any Letter of Credit, unless the applicable Issuing Lender is satisfied that the related exposure will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers in accordance with this Section 2.18(c), and participating interests in any such newly issued, extended or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.18(c)(i) (and Defaulting Lenders shall not participate therein); and
(e) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.16(d) but excluding Section 2.17(b)) shall, in lieu of being distributed to such Defaulting Lender, 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 Lender to the Administrative Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to any Issuing Lender, (iii) third, if so determined by the Administrative Agent or requested by an Issuing Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in any Letter of Credit, (iv) fourth, to the funding of any Loan in respect of which such Defaulting Lender 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 Borrower Representative, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders or an Issuing Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender or such Issuing Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, (vii) seventh, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreementdeemed terminated, and (viii3) eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is (x) a prepayment of the principal amount of any Loans or reimbursement obligations in respect of LC Disbursements for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 3.02 are satisfied, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Lender. In the event that the Administrative Agent, the Company and the Issuing Lenders agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Defaulting Lender’s Revolving Credit Commitment and on such date such Defaulting Lender shall purchase at par be relieved of its obligations hereunder as a “Lender” except as to its obligations under Sections 8.4 and 9.1 and any other obligations that expressly survive, which obligations shall continue with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Lender” hereunder, provided that, any such termination will not be deemed to be a waiver or release of the Loans of the other any claim by ▇▇▇▇▇▇▇▇, Administrative Agent, Swingline Lenders, Issuing Lenders as the Administrative Agent shall determine or any Lender may be necessary in order for have against such Defaulting Lender to hold such Loans in accordance with its Applicable PercentageLender.
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Defaulting Lender. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) commitment fees Facility Fees, if any, shall cease to accrue on the unfunded portion of the Revolving Credit Commitment of such Defaulting Lender pursuant to Section 2.10(a)2.13;
(b) such Defaulting Lender and the Revolving Credit Commitment and Revolving Extensions of Credit Exposure of such Defaulting Lender shall not be included in determining whether all the Lenders, all affected Lenders or the Required Lenders, Majority Facility Lenders under such Facility or any directly affected Lender under such Facility have taken or may take any action hereunder (including any consent to any amendment amendment, consent, waiver or waiver other modification pursuant to Section 10.0210.1); provided, that this clause (b) shall not apply in the case of an amendment, waiver or other than pursuant to Section 10.02(b)(i), 10.02(b)(iimodification that has the effect of (i) increasing the amount or 10.02(b)(iii) that directly affects such Lender), provided that any waiver, amendment or modification requiring extending the consent expiration date of all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent any portion of such Defaulting Lender;'s Commitment or extending the final scheduled maturity date of any Loan held by such Defaulting Lender, (ii) 509265-1725-11432-13209999 forgiving or reducing any principal amount of any Loan or any Reimbursement Obligation owing to such Defaulting Lender, or (iii) reducing the stated rate of any interest or fees payable to such Defaulting Lender hereunder, or extending the scheduled date of any payment required hereunder (for the purpose of clarity, the foregoing clauses (i), (ii), and (iii) shall not include any waiver of a mandatory prepayment and shall not preclude a waiver of applicability of any post-default increases in interest rates).
(c) if any LC Swingline Exposure exists or L/C Obligations exist at the time such any L/C Tranche Lender or Domestic Lender, as applicable, becomes a Defaulting Lender then:
(i) so long as no Event of Default shall have occurred and be continuing at such time (x) all or any part of the Swingline Exposure of such LC Exposure Defaulting Lender shall be reallocated among the non-Domestic Lenders that are not Defaulting Lenders in accordance with their respective Applicable Domestic Percentages (calculated without regard to such Defaulting Lender) but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving ' Domestic Extensions of Credit Exposures plus outstanding Domestic Competitive Loans plus such Defaulting Lender’s LC Swingline Exposure does not exceed the total of all non-Domestic Lenders that are not Defaulting Lenders’ Revolving Credit ' Domestic Commitments and (y) all or any part of the conditions set forth L/C Obligations of such Defaulting Lender shall be reallocated among the L/C Tranche Lenders that are not Defaulting Lenders in Section 5.02 accordance with their L/C Tranche Percentages (calculated without regard to such Defaulting Lender) but only to the extent the sum of all non-Defaulting Lenders' L/C Tranche Extensions of Credit plus such L/C Obligations does not exceed the total of all L/C Tranche Lenders that are satisfied at such timenot Defaulting Lenders' L/C Tranche Commitments;
(ii) if the any reallocation described in clause (i) above cannot, or can only partially, be effected, the Company shall within one Business Day or any applicable Subsidiary Borrower shall, at any time and from time to time following notice by the Administrative Agent cash collateralize Agent, prepay such Swingline Exposure and/or Collateralize for the benefit of each Issuing Lender that is not, itself, a Defaulting Lender, as applicable, the Borrowers' obligations corresponding to such Defaulting Lender’s LC Exposure 's L/C Obligations (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(i) for so long as such LC Exposure is outstandingL/C Obligations are outstanding or, if sooner, so long as such Defaulting Lender remains a Defaulting Lender (it being expressly understood and agreed that all accrued interest on such Collateralization shall be for the account of the Company or such applicable Subsidiary Borrower and shall be paid to the Company or such Subsidiary Borrower at any time and from time to time upon its request therefor; provided, that no Event of Default shall have then occurred and be continuing);
(iii) if the Company cash collateralizes or any Subsidiary Borrower Collateralizes any portion of such Defaulting Lender’s LC Exposure 's L/C Obligations pursuant to this Section 2.18(c)clause (ii) above, neither the Company nor any relevant Subsidiary Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.10(b) 3.3 with respect to such Defaulting Lender’s LC Exposure 's L/C Obligations during the period and to the extent such Defaulting Lender’s LC Exposure is cash collateralized's L/C Obligations are so Collateralized;
(iv) if the LC L/C Obligations or Swingline Exposure of the non-Defaulting Lenders is are reallocated pursuant to this Section 2.18(c)clause (i) above, then the fees payable to the non-Defaulting Lenders pursuant to Sections 2.10(a) Section 2.13 and 2.10(b) Section 3.3, as applicable, shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages' L/C Tranche Percentages of the L/C Tranche Commitments or Domestic Percentages of the Domestic Commitments, as applicable, calculated without regard to such Defaulting Lender's L/C Tranche Percentage of the L/C Tranche Commitments or Domestic Percentage of the Domestic Commitments, as the case may be; orand
(v) if all or any portion of such Defaulting Lender’s LC Exposure 's L/C Obligations is neither cash collateralized reallocated nor reallocated Collateralized pursuant to this Section 2.18(c)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the Company or any relevant Subsidiary Borrower, the applicable Issuing Lender or any other L/C Tranche Lender hereunder, all commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect pursuant to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.10(b) L/C Fee Letter with respect to such Defaulting Lender’s LC Exposure 's L/C Obligations shall be payable to the applicable Issuing Lender(s) 509265-1725-11432-13209999 Lender until and to the extent that such LC Exposure is cash collateralized L/C Obligations are so reallocated and/or reallocated;Collateralized; and
(d) so long as any no Issuing Lender is a Defaulting Lender, the Issuing Lenders shall not be required to issue, extendrenew, amend or increase any Letter of Credit, and no Swingline Lender shall be required to fund any Swingline Loan, unless the applicable Issuing Lender it is reasonably satisfied that the related exposure and such Defaulting Lender's then outstanding L/C Obligations or Swingline Exposure, as applicable, will be 100% covered by the Revolving Credit L/C Tranche Commitments or Domestic Commitments, as applicable, of the non-L/C Tranche Lenders and/or Domestic Lenders, as applicable, that are not Defaulting Lenders and/or cash collateral will be provided Collateralized by the Borrowers Company or any applicable Subsidiary Borrower in accordance with this Section 2.18(c), 2.28 and participating interests in any such newly issued, extended made Swingline Loan or any newly issued or increased Letter of Credit shall be allocated among non-the Domestic Lenders or L/C Tranche Lenders, as applicable, that are not Defaulting Lenders in a manner consistent with this Section 2.18(c)(i) 2.28 (and such Defaulting Lenders Lender shall not participate therein); and
(e) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.16(d) but excluding Section 2.17(b)) shall, in lieu of being distributed to such Defaulting Lender, 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 . If (i) first, a Lender Insolvency Event with respect to the payment parent company of any amounts owing by L/C Tranche Lender shall occur following the Closing Date and for so long as such Defaulting Lender to the Administrative Agent hereunder, event shall continue or (ii) secondany L/C Tranche Lender has defaulted in fulfilling its obligations under one or more other agreements in which such L/C Tranche Lender commits to extend credit, pro ratano Issuing Lender shall be required to issue, to amend or increase any Letter of Credit unless such Issuing Lender shall have entered into arrangements with the payment of any amounts owing by Company or such Defaulting Lender to any Issuing L/C Tranche Lender, (iii) third, if so determined by the Administrative Agent or requested by an satisfactory to such Issuing Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of defease any participating interest in any Letter of Credit, (iv) fourth, risk to the funding of any Loan it in respect of such L/C Tranche Lender hereunder. If (i) a Lender Insolvency Event with respect to the parent company of any Domestic Lender shall occur following the Closing Date and for so long as such event shall continue or (ii) any Domestic Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Defaulting Domestic Lender has failed commits to extend credit, no Swingline Lender shall be required to fund its portion thereof as required by this Agreementany Swingline Loan unless such Swingline Lender shall have entered into arrangements with the Company or such Domestic Lender, as determined by satisfactory to such Swingline Lender, to defease any risk to it in respect of such Domestic Lender hereunder. In the Administrative Agentevent that a Domestic Lender becomes a Defaulting Lender, (v) fifth, if so determined by the Administrative Agent and the Borrower Representative, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Loans under this Agreement, (vi) sixth, shall give notice to the payment of any amounts owing to the Lenders or an Issuing Company and each affected Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender or stating that such Issuing Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, (vii) seventh, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, and (viii) eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is (x) a prepayment of the principal amount of any Loans or reimbursement obligations in respect of LC Disbursements for which a Defaulting Domestic Lender has funded its participation obligations and (y) made at become a time when the conditions set forth in Section 3.02 are satisfied, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Lender. In the event that each of the Administrative Agent, the Company Company, each relevant Subsidiary Borrower and the Issuing Lenders agree each affected Swingline Lender agrees that a such Defaulting Lender has adequately remedied all matters that caused such Defaulting Lender to be a Defaulting Lender, then the LC Swingline Exposure of the Domestic Lenders shall be readjusted to reflect the inclusion of such Defaulting Lender’s Revolving Credit Commitment and 's Domestic Commitments and, on such date date, such Defaulting Domestic Lender shall purchase at par such of the Loans and/or participations in the Swingline Exposure of the other Domestic Lenders as the Administrative Agent shall determine may be necessary in order for such Defaulting Domestic Lender to hold such Domestic Loans and participations in the Swingline Exposure in accordance with its Applicable PercentageDomestic Percentage of the Domestic Commitments. In the event that an L/C Tranche Lender becomes a Defaulting Lender, the Administrative Agent shall give notice to the Company and each affected Issuing Lender stating that such L/C Tranche Lender has become a Defaulting Lender. In the event that each of the Administrative Agent, the Company, each relevant Subsidiary Borrower and each affected Issuing Lender agrees that such Defaulting Lender has adequately remedied all matters that caused such Defaulting Lender to be a Defaulting Lender, then the L/C Obligations of the L/C Tranche Lenders shall be readjusted to reflect the inclusion of such Defaulting Lender's L/C Tranche Commitments and, on such date, such L/C Tranche Lender shall purchase at par such of the Loans and/or participations in the L/C Obligations of the other L/C Tranche Lenders as the Administrative Agent shall determine may be necessary in order for such L/C Tranche Lender to hold such L/C Tranche Loans and participations in the L/C Obligations in accordance with its L/C Tranche Percentage of the L/C Tranche Commitments.
Appears in 1 contract
Defaulting Lender. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) commitment fees except as otherwise expressly provided for in this Section 2.23, Advances under the relevant Commitments shall be incurred pro rata from the Non-Defaulting Lenders based on their respective Revolving Commitment Percentages, L/C Commitment Percentages or Roll-Up Commitment Percentages, as applicable, and no Revolving Commitment Percentage, L/C Commitment Percentage or Roll-Up Commitment Percentage of any Lender or any pro rata share of any Advances required to be advanced by any Lender shall be increased as a result of any Lender becoming a Defaulting Lender. Amounts received in respect of principal of any Revolving Advances and L/C Commitment Advances shall be applied to reduce the Revolving Advances and L/C Commitment Advances, respectively, of each Lender (other than any Defaulting Lender with respect to Revolving Advances and L/C Commitment Advances) in accordance with their respective Revolving Commitment Percentages and L/C Commitment Percentages; provided, that, Agent shall not be obligated to transfer to a Defaulting Lender with respect to Revolving Commitment Advances or L/C Commitment Advances any payments received by Agent for such Defaulting ▇▇▇▇▇▇’s benefit, nor shall such a Defaulting Lender be entitled to the sharing of any payments hereunder (including any principal, interest or fees) in respect of Revolving Commitments or Revolving Advances and L/C Commitments or L/C Commitment Advances. Amounts received in respect of principal of any Roll-Up Advances shall be applied to reduce the Roll-Up Advances of each Roll-Up Lender (other than any Defaulting Lender with respect to Roll-Up Advances) in accordance with their Roll-Up Commitment Percentages; provided, that, Agent shall not be obligated to transfer to a Defaulting Lender with respect to Roll-Up Advances any payments received by Agent in respect of the Roll-Up Commitments for the Defaulting Lender’s benefit, nor shall such a Defaulting Lender be entitled to the sharing of any payments hereunder (including any principal, interest or fees) with respect to Roll-Up Advances or Roll-Up Commitments. Amounts payable to a Defaulting Lender shall instead be paid to or retained by Agent. Agent may hold and, in its discretion, re- lend to a Borrower the amount of such payments received or retained by it for the account of such Defaulting Lender;
(b) Commitment Fees accruing in respect of the Commitments with respect to which such Defaulting Lender is a Defaulting Lender shall cease to accrue on the unfunded portion of the Revolving Credit Commitment in favor of such Defaulting Lender pursuant to Section 2.10(a)3.3;
(bc) the Revolving Credit Commitment Percentage and L/C Commitment Percentage and outstanding Revolving Credit Exposure Commitment Advances and L/C Commitment Advances of such Defaulting Lender (if such Lender is a Defaulting Lender with respect to Revolving Commitment Advances or L/C Commitment Advances) and the Roll-Up Commitment Percentage and outstanding Roll-Up Advances of such Defaulting Lender (if such Lender is a Defaulting Lender with respect to Roll-Up Advances) shall not be included in determining whether all Lenders, all affected Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 10.0216.2); provided, that this clause (c) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other than pursuant to Section 10.02(b)(i), 10.02(b)(ii) or 10.02(b)(iii) that directly affects such Lender), provided that any waiver, amendment or modification requiring the consent of all Lenders or such particular Lender and/or each Lender directly affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lenderthereby;
(cd) if any LC Exposure exists Letters of Credit, the WTC Letter of Credit or any Roll-Up Letters of Credit (or drawings under any Letter of Credit, the WTC Letter of Credit or any Roll-Up Letters of Credit for which the Issuer has not been reimbursed) are outstanding or any exist at the time such Lender ▇▇▇▇▇▇ becomes a Defaulting Lender Lender, then:
(i) all or any part of the obligations of such LC Exposure Defaulting Lenders under its Participation Commitments and L/C Participation Commitments in respect of Letters of Credit and the WTC Letter of Credit (such Defaulting Lender’s “Letter of Credit Obligations”) shall be reallocated among the nonLenders that are Non-Defaulting Lenders with respect to the Initial Commitments, the Revolving Commitments and the L/C Commitments in accordance with their respective Applicable Percentages Ratable Shares but only to the extent that (x) the aggregate sum of outstanding Revolving Advances plus the aggregate Maximum Undrawn Amount of all nonoutstanding Letters of Credit shall not exceed the aggregate of the Revolving Commitment Amount of all such Non-Defaulting Lenders’ Revolving , (y) the aggregate sum of outstanding L/C Commitment Advances plus the maximum undrawn face amount of the WTC Letter of Credit Exposures plus shall not exceed the aggregate of the L/C Commitment Amount of all such Non-Defaulting Lenders, and (z) no Potential Default or Event of Default has occurred and is continuing at such time; and all or any part of the obligations of such Defaulting Lenders under its Roll-Up Participation Commitments (such Defaulting Lender’s LC Exposure does “Roll-Up Letter of Credit Obligations”) shall be reallocated among the Non-Defaulting Lenders with respect to the Roll-Up Commitments in accordance with their respective Roll-Up Ratable Shares but only to the extent that (x) the aggregate sum of outstanding Roll-Up Advances plus the aggregate Maximum Undrawn Amount of all outstanding Roll-Up Letters of Credit shall not exceed the total aggregate of the Roll-Up Commitment Amount of all nonsuch Non-Defaulting Lenders’ Revolving Credit Commitments , and (y) the conditions set forth in Section 5.02 are satisfied no Potential Default or Event of Default has occurred and is continuing at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Company Borrower shall within one Business Day following notice by the Administrative Agent cash collateralize for the benefit of the Issuer Borrowers’ obligations corresponding to such Defaulting Lender’s LC Exposure Participation Commitments or Roll-Up Participation Commitments with respect to outstanding Letters of Credit, the outstanding WTC Letter of Credit and outstanding Roll-Up Letters of Credit (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(i3.2(b) for so long as such LC Exposure is any Letters of Credit, the WTC Letter of Credit and any Roll-Up Letters of Credit, as applicable, are outstanding;
(iii) if the Company Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure Letter of Credit Obligations or Roll-Up Letter of Credit Obligations, as applicable (in each case after giving effect to any partial reallocation pursuant to this Section 2.18(cclause (i) above), pursuant to clause (ii) above, the Company Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.10(b) 3.2 with respect to such Defaulting Lender’s LC Exposure Letter of Credit Obligations or Roll-Up Letter of Credit Obligations, as applicable, during the period such Defaulting Lender’s LC Exposure is Participation Commitments or Roll-Up Participation Commitments, as applicable, are cash collateralized;
(iv) if the LC Exposure any portion of the nonNon-Defaulting Lenders is Lenders’ Letter of Credit Obligations are reallocated pursuant to this Section 2.18(c)clause (i) above, then the fees payable to the Revolving Lenders or the L/C Commitment Lenders, as applicable, pursuant to Sections 2.10(a) and 2.10(b) Section 3.2 shall be adjusted in accordance with such nonNon-Defaulting Lenders’ Applicable PercentagesRatable Share, and if any portion of the Non- Defaulting Lender’s Roll-Up Letter of Credit Obligations are reallocated pursuant to clause (i) above, then the fees payable to the Roll-Up Lenders pursuant to Section 3.2 shall be adjusted in accordance with such Non-Defaulting Lenders’ Roll-Up Ratable Share; orand
(v) if all or any portion of such Defaulting Lender’s LC Exposure is Letter of Credit Obligations are neither reallocated nor cash collateralized nor reallocated pursuant to this Section 2.18(c)clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Lender Issuer or any other Lender hereunder, all commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion Letter of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees Credit Fees payable under Section 2.10(b) 3.2 with respect to such Defaulting Lender’s LC Exposure Letter of Credit Obligations shall be payable to the applicable Issuing Lender(sIssuer (and not to such Defaulting Lender) until and to the extent that such LC Exposure is Letter of Credit Obligations are reallocated and/or cash collateralized, and if all or any portion of such Defaulting Lender’s Roll-Up Letter of Credit Obligations are neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of Issuer or any other Lender hereunder, all Roll-Up Letter of Credit Fees payable under Section 3.2 with respect to such Defaulting Lender’s Roll-Up Letter of Credit Obligations shall be payable to Issuer (and not to such Defaulting Lender) until and to the extent that such Roll-Up Letter of Credit Obligations are reallocated and/or reallocated;cash collateralized; and
(de) so long as any such Lender is a Defaulting LenderLender with respect to Revolving Advances or L/C Commitment Advances, the Issuing Lenders Issuer shall not be required to issue, extend, amend or increase any Letter of Credit, unless the applicable Issuing Lender Issuer is satisfied that the related exposure and the Defaulting Lender’s then outstanding Letter of Credit Obligations will be 100% covered by the Revolving Credit Commitments and L/C Commitments of the nonNon-Defaulting Lenders and/or cash collateral will be provided by the Borrowers Borrower in accordance with this Section 2.18(c2.23(d)(iii), and participating interests in any such newly issued, extended issued or increased Letter of Credit shall be allocated among nonNon-Defaulting Lenders in a manner consistent with Section 2.18(c)(i2.23(d)(i) (and such Defaulting Lenders Lender shall not participate therein); and
and so long as such Lender is a Defaulting Lender with respect to Roll-Up Advances, Issuer shall not be required to amend or increase any Roll-Up Letter of Credit, unless Issuer is satisfied that the related exposure and the Defaulting Lender’s then outstanding Roll-Up Letter of Credit Obligations will be 100% covered by the Roll-up Commitments of the Non-Defaulting Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 2.23(d)(iii), and participating interests in any newly issued or increased Roll-Up Letter of Credit shall be allocated among Non-Defaulting Lenders in a manner consistent with Section 2.23(d)(i) (e) any amount payable to and such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.16(d) but excluding Section 2.17(bshall not participate therein)) shall, in lieu of being distributed to such Defaulting Lender, 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 . If (i) first, a Bankruptcy Event with respect to the payment a parent company of any amounts owing by Revolving Lender shall occur following the date hereof and for so long as such Defaulting Lender to the Administrative Agent hereunderevent shall continue, or (ii) second, pro rata, a Bankruptcy Event with respect to the payment a parent company of any amounts owing by Roll-Up Lender shall occur following the date hereof and for so long as such Defaulting Lender event shall continue, Issuer shall not be required to any Issuing Lenderissue, (iii) third, if so determined by the Administrative Agent amend or requested by an Issuing Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in increase any Letter of Credit, (iv) fourththe WTC Letter of Credit or any Roll-Up Letter of Credit, as the case may be, unless Issuer shall have entered into arrangements with the Borrower or such ▇▇▇▇▇▇, satisfactory to the funding of Issuer to defease any Loan risk to it in respect of which such Defaulting Lender 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 Borrower Representative, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders or an Issuing Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender or such Issuing Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, (vii) seventh, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, and (viii) eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is (x) a prepayment of the principal amount of any Loans or reimbursement obligations in respect of LC Disbursements for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 3.02 are satisfied, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Lenderhereunder. In the event that the Administrative Agent, the Company Borrowers and the Issuing Lenders Issuer agree in writing that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then Issuer will so notify the LC Exposure parties hereto, and the Ratable Share of the Letter of Credit Obligations and Roll-Up Letter of Credit Obligations of the Lenders shall be readjusted to reflect the inclusion of such Defaulting Lender▇▇▇▇▇▇’s Commitment Percentages, Roll-Up Commitment Percentages, Revolving Credit Commitment, L/C Commitment and Roll-Up Commitment, as applicable, and on such date such Defaulting Lender shall purchase at par such of the Loans Revolving Advances and Roll-Up Advances, as applicable, of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Defaulting Lender to hold such Loans Revolving Advances and L/C Commitment Advances in accordance with its Applicable PercentageRatable Share and to hold such Roll-Up Advances in accordance with its Roll-Up Ratable Share. Issuer shall thereupon release to the Borrower any cash collateral provided pursuant to Section 2.23(d)(iii) with respect to such Lender, unless a Default or Event of Default has occurred and is continuing at such time. Other than as expressly set forth in this Section 2.23, the rights and obligations of a Defaulting Lender (including the obligation to indemnify Agent) and the other parties hereto shall remain unchanged. Nothing in this Section 2.23 shall be deemed to release any Defaulting Lender from its obligations under this Agreement and the Other Documents, shall alter such obligations, shall operate as a waiver of any default by such Defaulting Lender hereunder, or shall prejudice any rights which any Borrower, Agent or any Lender may have against any Defaulting Lender as a result of any default by such Defaulting Lender hereunder.
Appears in 1 contract
Sources: Credit and Security Agreement
Defaulting Lender. Notwithstanding At any provision of this Agreement to the contrary, if any time when a Lender becomes is then a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) commitment fees shall cease Borrower, at their election, may elect to accrue on the unfunded portion of the Revolving Credit Commitment of such Defaulting Lender pursuant to Section 2.10(a);
(b) the Revolving Credit Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, all affected Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.02, other than pursuant to Section 10.02(b)(i), 10.02(b)(ii) or 10.02(b)(iii) that directly affects such Lender), provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lender;
(c) if any LC Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of such LC Exposure shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus terminate such Defaulting Lender’s LC Exposure does not exceed the total Commitment hereunder; provided that, (A) such termination must be of all non-Defaulting Lenders’ Revolving Credit Commitments and (y) of the conditions set forth in Section 5.02 are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Company shall within one Business Day following notice by the Administrative Agent cash collateralize such Defaulting Lender’s LC Exposure Commitments, (after giving effect to any partial reallocation pursuant to clause (iB) above) in accordance with the procedures set forth in Section 2.04(i) for so long as such LC Exposure is outstanding;
(iii) if Borrower shall pay all amounts owed by the Company cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to this Section 2.18(c), the Company shall not be required to pay any fees Borrower to such Defaulting Lender pursuant in such ▇▇▇▇▇▇’s capacity as a Lender under this Agreement and under the other Loan Documents (including principal of and interest on the Loans owed to such Defaulting Lender, accrued Commitment Fees (subject to Section 2.10(b2.15(a)(iii)), and Letter of Credit fees (subject to Section 2.15(a)(iii)) but specifically excluding any amounts owing under Section 2.10 as result of such payment of such Loans) and shall deposit with respect the Administrative Agent into the Cash Collateral Account Cash Collateral in the amount equal to such Defaulting Lender’s ratable share of the LC Exposure during (including any such portion thereof that has been reallocated pursuant to Section 2.15), (C) a Defaulting Lender’s Commitments may be terminated by the period Borrower under this
Section 2.1 (b)(i) if and only if at such time, the Borrower have elected, or are then electing, to terminate the Commitments of all then existing Defaulting Lenders, and (D) no Default has occurred and is continuing at the time of such election and termination. Upon written notice to the Defaulting Lender and Administrative Agent of the Borrower’s election to terminate a Defaulting Lender’s Commitments pursuant to this clause (i) and the payment and deposit of amounts required to be made by the Borrower under clause (B) and (C) above, (1) such Defaulting Lender shall cease to be a “Lender” hereunder for all purposes except that such ▇▇▇▇▇▇’s rights and obligations as a Lender under Section 2.9, Section 2.11, Section 2.13, Section 8.3 and Section 9.1 shall continue with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Lender” hereunder, (2) such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.18(c), then the fees payable to the Lenders pursuant to Sections 2.10(a) and 2.10(b) Commitments shall be adjusted in accordance deemed terminated, and (3) such Defaulting Lender shall be relieved of its obligations hereunder as a “Lender” except as to its obligations under Section 8.3 and Section 9.1 and any other obligations that expressly survive, which obligations shall continue with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Lender” hereunder, provided that, any such non-Defaulting Lenders’ Applicable Percentages; or
(v) if any Defaulting Lender’s LC Exposure is neither cash collateralized nor reallocated pursuant termination will not be deemed to this Section 2.18(c), then, without prejudice to any rights be a waiver or remedies release of any claim the Borrower, the Administrative Agent, the Issuing Lender or any Lender hereunder, all commitment fees that otherwise would may have been payable to such Defaulting Lender (solely with respect to the portion of against such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.10(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Lender(s) until such LC Exposure is cash collateralized and/or reallocated;
(d) so long as any Lender is a Defaulting Lender, the Issuing Lenders shall not be required to issue, extend, amend or increase any Letter of Credit, unless the applicable Issuing Lender is satisfied that the related exposure will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers in accordance with this Section 2.18(c), and participating interests in any such newly issued, extended or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.18(c)(i) (and Defaulting Lenders shall not participate therein); and
(e) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.16(d) but excluding Section 2.17(b)) shall, in lieu of being distributed to such Defaulting Lender, 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 Lender to the Administrative Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to any Issuing Lender, (iii) third, if so determined by the Administrative Agent or requested by an Issuing Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in any Letter of Credit, (iv) fourth, to the funding of any Loan in respect of which such Defaulting Lender 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 Borrower Representative, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders or an Issuing Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender or such Issuing Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, (vii) seventh, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, and (viii) eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is (x) a prepayment of the principal amount of any Loans or reimbursement obligations in respect of LC Disbursements for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 3.02 are satisfied, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Lender. In the event that the Administrative Agent, the Company and the Issuing Lenders agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Defaulting Lender’s Revolving Credit Commitment and on such date such Defaulting Lender shall purchase at par such of the Loans of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Defaulting Lender to hold such Loans in accordance with its Applicable Percentage.
Appears in 1 contract
Defaulting Lender. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion of the Revolving Credit Commitment of such Defaulting Lender pursuant to Section 2.10(a);
(b) the Revolving Credit Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, all affected Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.02, other than pursuant to Section 10.02(b)(i), 10.02(b)(ii) or 10.02(b)(iii) that directly affects such Lender), provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lender;
(c) if any LC Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) : all or any part of such LC Exposure shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s LC Exposure does not exceed the total of all non-Defaulting Lenders’ Revolving Credit Commitments and (y) the conditions set forth in Section 5.02 are satisfied at such time;
(ii) ; if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Company shall within one Business Day following notice by the Administrative Agent cash collateralize such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(i) for so long as such LC Exposure is outstanding;
(iii) ; if the Company cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to this Section 2.18(c), the Company shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.10(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) ; if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.18(c), then the fees payable to the Lenders pursuant to Sections 2.10(a) and 2.10(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; or
(v) or if any Defaulting Lender’s LC Exposure is neither cash collateralized nor reallocated pursuant to this Section 2.18(c), then, without prejudice to any rights or remedies of any Issuing Lender or any Lender hereunder, all commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.10(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Lender(s) until such LC Exposure is cash collateralized and/or reallocated;
(d) so long as any Lender is a Defaulting Lender, the Issuing Lenders shall not be required to issue, extend, amend or increase any Letter of Credit, unless the applicable Issuing Lender is satisfied that the related exposure will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers in accordance with this Section 2.18(c), and participating interests in any such newly issued, extended or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.18(c)(i) (and Defaulting Lenders shall not participate therein); and
(e) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.16(d) but excluding Section 2.17(b)) shall, in lieu of being distributed to such Defaulting Lender, 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 Lender to the Administrative Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to any Issuing Lender, (iii) third, if so determined by the Administrative Agent or requested by an Issuing Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in any Letter of Credit, (iv) fourth, to the funding of any Loan in respect of which such Defaulting Lender 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 Borrower Representative, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders or an Issuing Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender or such Issuing Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, (vii) seventh, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, and (viii) eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is (x) a prepayment of the principal amount of any Loans or reimbursement obligations in respect of LC Disbursements for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 3.02 are satisfied, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Lender. In the event that the Administrative Agent, the Company and the Issuing Lenders agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Defaulting Lender’s Revolving Credit Commitment and on such date such Defaulting Lender shall purchase at par such of the Loans of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Defaulting Lender to hold such Loans in accordance with its Applicable Percentage.
Appears in 1 contract
Defaulting Lender. Notwithstanding At any provision time when a Lender is then a Defaulting Lender, the Borrower, at the Borrower’s election, may elect to terminate such Defaulting Lender’s Revolving Commitment hereunder or such Defaulting Lender’s unfunded Term Commitment; provided that (A) such termination must be of the Defaulting Lender’s entire Revolving Commitment or unfunded Term Commitment, (B) the Non-Defaulting Lenders shall each have the option to accept an assignment of the Defaulting Lender’s Revolving Commitment or unfunded Term Commitment pursuant to Section 2.13 in lieu of a termination of Commitments pursuant to this Section 2.1(c)(iii), (C) to the extent that the Non-Defaulting Lenders do not take an assignment as provided in the immediately preceding clause (B), the Borrower shall pay all amounts owed by the Borrower to such Defaulting Lender in such Defaulting Lender’s capacity as a Revolving Lender under this Agreement and under the other Credit Documents (including principal of and interest on the Revolving Advances owed to such Defaulting Lender, accrued Commitment Fees (subject to Section 2.6(a)), and letter of credit fees but specifically excluding any amounts owing under Section 2.9 as result of such payment of such Advances) and shall deposit with the Administrative Agent into the Cash Collateral Account cash collateral in the amount equal to such Defaulting Lender’s ratable share of the Letter of Credit Exposure (including any such Letter of Credit Exposure that has been reallocated pursuant to Section 2.14), (D) if any unfunded Term Commitment is being terminated pursuant to this clause (iii), the Borrower shall pay all amounts owed by the Borrower to such Defaulting Lender in such Lender’s capacity as a Term Lender under this Agreement and under the other Credit Documents (including principal of and interest on the Term Advances owed to such Defaulting Lender) but specifically excluding any amounts owing under Section 2.9 as result of such payment of such Advances), (E) a Defaulting Lender’s Revolving Commitment and unfunded Term Commitment may be terminated by the Borrower under this Section 2.1(c)(iii) if and only if at such time, the Borrower has elected, or is then electing, to terminate the Revolving Commitments and the unfunded Term Commitments of all then existing Defaulting Lenders, and (F) such termination shall not be permitted if an Event of Default has occurred and is continuing. Upon written notice to the Defaulting Lender and Administrative Agent of the Borrower’s election to terminate a Defaulting Lender’s Revolving Commitment and unfunded Term Commitment pursuant to this clause (iii) and the payment and deposit of amounts required to be made by the Borrower under clause (B) and (C) above, (1) such Defaulting Lender shall cease to be a “Revolving Lender” or a “Term Lender”, as applicable, hereunder for all purposes except that such Lender’s rights and obligations as a Revolving Lender or a Term Lender, as applicable, under Sections 2.10, 2.12, 8.9 and 9.1 shall continue with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Revolving Lender” or “Term Lender”, as applicable, hereunder, (2) such Defaulting Lender’s Revolving Commitment and unfunded Term Commitment shall be deemed terminated, and (3) such Defaulting Lender shall be relieved of its obligations hereunder as a “Revolving Lender” and “Term Lender”, as applicable, except as to its obligations under Section 8.9 shall continue with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Revolving Lender” or “Term Lender”, as applicable, hereunder, provided that, any such termination will not be deemed to be a waiver or release of any claim that the Borrower, the Administrative Agent, the Swing Line Lender, the Issuing Lender or any Lender may have against such Defaulting Lender. Notwithstanding anything herein to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion of the Revolving Credit Commitment of such Defaulting Lender pursuant to Section 2.10(a);
(b) the Revolving Credit Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, all affected Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.02, other than pursuant to Section 10.02(b)(i), 10.02(b)(ii) or 10.02(b)(iii) that directly affects such Lender), provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lender;
(c) if any LC Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of such LC Exposure shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages but only to the extent (x) if no unfunded Term Commitment is then being terminated pursuant to this clause (iii), the sum termination of all non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s LC Exposure does commitments, rights and obligations provided for in this clause (iii) shall not exceed the total of all non-Defaulting Lenders’ Revolving Credit Commitments affect rights and obligations that a Lender may have in its capacity as a Term Lender and (y) the conditions set forth in Section 5.02 are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Company shall within one Business Day following notice by the Administrative Agent cash collateralize such any termination of a Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation Revolving Commitment pursuant to this clause (i) above) in accordance with the procedures set forth in Section 2.04(i) for so long as such LC Exposure is outstanding;
(iii) if the Company cash collateralizes any portion must occur concurrently with a termination of such Defaulting Lender’s LC Exposure pursuant unfunded Term Commitments. Notwithstanding anything herein to this Section 2.18(c)the contrary, the Company shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.10(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.18(c), then the fees payable to the Lenders pursuant to Sections 2.10(a) and 2.10(b) shall be adjusted in accordance with such nonNon-Defaulting Lenders’ Applicable Percentages; or
(voption to take an assignment as provided in Section 2.1(c)(iii)(B) if any Defaulting Lender’s LC Exposure is neither cash collateralized nor reallocated pursuant to this Section 2.18(c), then, without prejudice to any rights or remedies of any Issuing Lender or any Lender hereunder, all commitment fees that otherwise would have been payable to such may be exercised by a Non-Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) in its sole and letter of credit fees payable under Section 2.10(b) with respect to such Defaulting Lender’s LC Exposure absolute discretion and nothing contained herein shall be payable to the applicable Issuing Lender(s) until such LC Exposure is cash collateralized and/or reallocated;
(d) so long as obligate any Lender is a Defaulting Lender, the Issuing Lenders shall not be required to issue, extend, amend or increase any Letter of Credit, unless the applicable Issuing Lender is satisfied that the related exposure will be 100% covered by the Revolving Credit Commitments of the nonNon-Defaulting Lenders and/or cash collateral will be provided by the Borrowers in accordance with this Section 2.18(c), and participating interests in any such newly issued, extended or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.18(c)(i) (and Defaulting Lenders shall not participate therein); and
(e) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.16(d) but excluding Section 2.17(b)) shall, in lieu of being distributed to such Defaulting Lender, 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 Lender to the Administrative Agent hereunder, (ii) second, pro rata, to the payment of take any amounts owing by such Defaulting Lender to any Issuing Lender, (iii) third, if so determined by the Administrative Agent or requested by an Issuing Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in any Letter of Credit, (iv) fourth, to the funding of any Loan in respect of which such Defaulting Lender 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 Borrower Representative, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders or an Issuing Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender or such Issuing Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, (vii) seventh, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, and (viii) eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is (x) a prepayment of the principal amount of any Loans or reimbursement obligations in respect of LC Disbursements for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 3.02 are satisfied, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Lender. In the event that the Administrative Agent, the Company and the Issuing Lenders agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Defaulting Lender’s Revolving Credit Commitment and on such date such Defaulting Lender shall purchase at par such of the Loans of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Defaulting Lender to hold such Loans in accordance with its Applicable Percentageassignment.
Appears in 1 contract
Sources: Credit Agreement (Steel Excel Inc.)
Defaulting Lender. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) commitment fees 4.11.1 The Unused Line Fee shall cease to accrue on the unfunded portion of the Revolving Credit Commitment of such Lender so long as it is a Defaulting Lender (except to the extent it is payable to an Issuing Bank pursuant to Section 2.10(asubsection 4.11.2(v) below);
(b) the Revolving 4.11.2 If any Letters of Credit Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, all affected Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.02, other than pursuant to Section 10.02(b)(i), 10.02(b)(ii) or 10.02(b)(iii) that directly affects such Lender), provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lender;
(c) if any LC Exposure exists are outstanding at the time such a Lender becomes a Defaulting Lender then:
(iA) the exposure under all or any part of such LC Exposure any Letters of Credit shall be reallocated among the applicable non-Defaulting Lenders that are Revolving Credit Lenders in accordance with their respective Applicable Pro Rata Percentages but only to the extent (x) the sum of all such non-Defaulting Lenders’ Revolving Credit Exposures Loans outstanding, plus such Defaulting Lender’s the LC Exposure Amount, does not exceed the total of all such non-Defaulting Lenders’ Revolving Credit Commitments Commitments; and (yB) with respect to any such exposure so reallocated, each applicable non-Defaulting Lender shall be deemed to have irrevocably and unconditionally purchased from the conditions set forth Issuing Bank an undivided interest and participation in the portion of each Letter of Credit so reallocated, in accordance with the applicable provisions of Section 5.02 are satisfied at 2.2. Subject to Section 3.12, no reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Lender having become a Defaulting Lender, including any claim of a non-Defaulting Lender as a result of such timenon-Defaulting Lender’s increased exposure following such reallocation;
(ii) if the reallocation reallocations described in clause (i) above cannot, or can only partially, be effected, the Company Borrowers shall within one (1) Business Day following notice by the Administrative Agent cash collateralize such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) cash collateralize Letters of Credit in accordance with an amount equal to the procedures set forth in Section 2.04(i) for so long as product of such Defaulting Lender’s Pro Rata Percentage times the total LC Exposure is outstandingAmount;
(iii) if the Company cash collateralizes any portion of such Defaulting Lender’s LC Exposure the Letters of Credit is cash collateralized pursuant to this Section 2.18(c)clause (ii) above, the Company Borrowers shall not be required to pay any fees to such Defaulting Lender pursuant to the Letter of Credit fee described in clause (i) of Section 2.10(b) 3.4 with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure portion so long as it is cash collateralized;
(iv) if any portion of the LC Exposure exposure under Letters of Credit of such Defaulting Lender is reallocated to the non-Defaulting Lenders is reallocated pursuant to this Section 2.18(c)clause (i) above, then the fees payable Letter of Credit fee described in clause (i) of Section 3.4 with respect to the Lenders pursuant such portion so reallocated to Sections 2.10(a) and 2.10(b) shall be adjusted in accordance with each such non-Defaulting Lenders’ Applicable PercentagesLender shall be paid to such non-Defaulting Lender; orand
(v) if any portion of the exposure under Letters of Credit of such Defaulting Lender’s LC Exposure Lender is neither cash collateralized nor reallocated pursuant to this Section 2.18(c)subsection 4.11.2, then, without prejudice to any rights or remedies of any Issuing Lender Bank or any Lender hereunder, all commitment fees the Unused Line Fee that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Revolving Credit Commitment that was utilized by such LC ExposureLetters of Credit) and letter the Letter of credit fees Credit fee described in clause (i) of Section 3.4 payable under Section 2.10(b) with respect to such Defaulting Lender’s LC Exposure Letters of Credit shall be payable to the applicable Issuing Lender(s) Bank until such LC Exposure is Letters of Credit are fully cash collateralized and/or reallocated;.
(d) so 4.11.3 So long as any Lender is a Defaulting Lender, the no Issuing Lenders Bank shall not be required to issue, extend, amend or increase any Letter of Credit, unless the applicable Issuing Lender it is satisfied that the related exposure will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers collateralized in accordance with this Section 2.18(c)subsection 4.11.2, and participating interests participations in any such newly issued, extended issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent accordance with Section 2.18(c)(i) their respective Pro Rata Percentages (and Defaulting Lenders shall not participate therein); and.
(e) any 4.11.4 Any amount payable to such a Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.16(d) but excluding Section 2.17(b)subsection 13.5.6) shallmay, in lieu of being distributed to such Defaulting Lender, be retained by the Administrative Agent in a segregated non-interest bearing account and, subject to any applicable requirements of lawApplicable 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 Lender to the Administrative Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to any Issuing LenderBank hereunder, (iii) third, if so determined by the Administrative Agent or requested by an Issuing Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in any Letter of Credit, (iv) fourth, to the funding of any Loan or the funding or cash collateralization of any participation in any Letter of Credit in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (viv) fifthfourth, if so determined by the Administrative Agent and the Borrower RepresentativeBorrowers, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Loans under this Agreement, (viv) sixthfifth, pro rata, to the payment of any amounts owing to Borrowers or the Lenders or an Issuing Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender Borrower or such Issuing any Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, (vii) seventh, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, Agreement and (viiivi) eighthsixth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided provided, that if such payment is (x) a prepayment of the principal amount of any Loans or reimbursement obligations LC Obligations in respect of LC Disbursements for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 3.02 are satisfiedobligations, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations LC Obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any LoansLoans of, or reimbursement obligations LC Obligations owed to, any Defaulting Lender. .
4.11.5 In the event that the Administrative Agent, the Company Borrowers and the Issuing Lenders Bank agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the LC Exposure exposure of the Lenders under the Letters of Credit shall be readjusted to reflect the inclusion of such Defaulting Lender’s Revolving Credit Commitment and on such date such Defaulting Lender shall purchase at par such of the Revolving Credit Loans of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Defaulting Lender to hold such Revolving Credit Loans in accordance with its Applicable Pro Rata Percentage. The rights and remedies against a Defaulting Lender under this Section 4.11 are in addition to other rights and remedies that Borrowers, Administrative Agent, Issuing Bank and the non-Defaulting Lenders may have against such Defaulting Lender. The arrangements permitted or required by this Section 4.11 shall be permitted under this Agreement, notwithstanding any limitation on Liens or the pro rata sharing provisions or otherwise.
Appears in 1 contract
Sources: Loan, Security and Guaranty Agreement (Quest Resource Holding Corp)
Defaulting Lender. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) commitment fees 4.11.1 The Unused Line Fee shall cease to accrue on the unfunded portion of the Revolving Credit Commitment of such Lender so long as it is a Defaulting Lender (except to the extent it is payable to an Issuing Bank pursuant to Section 2.10(asubsection 4.11.2(v) below);
(b) the Revolving 4.11.2 If any Swingline Loans or Letters of Credit Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, all affected Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.02, other than pursuant to Section 10.02(b)(i), 10.02(b)(ii) or 10.02(b)(iii) that directly affects such Lender), provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lender;
(c) if any LC Exposure exists are outstanding at the time such a Lender becomes a Defaulting Lender then:
(iA) the exposure under all or any part of any such LC Exposure Swingline Loans or Letters of Credit shall be reallocated among the applicable non-Defaulting Lenders that are Revolving Credit Lenders in accordance with their respective Applicable Pro Rata Percentages but only to the extent (x) the sum of all such non-Defaulting Lenders’ Revolving Credit Exposures Loans outstanding, plus such Defaulting Lender’s the LC Exposure Amount, plus the aggregate amount of Swingline Loans outstanding does not exceed the total of all such non-Defaulting Lenders’ Revolving Credit Commitments Commitments; and (yB) with respect to any such exposure so reallocated, each applicable non-Defaulting Lender shall be deemed to have irrevocably and unconditionally purchased from the conditions set forth applicable Swingline Lender or Issuing Bank an undivided interest and participation in the portion of each Swingline Loan or Letter of Credit so reallocated, in accordance with the applicable provisions of subsection 2.1.3 and Section 5.02 are satisfied at such time2.2;
(ii) if the reallocation reallocations described in clause (i) above cannot, or can only partially, be effected, the Company Borrowers shall within one (1) Business Day following notice by the Administrative Agent cash collateralize such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) (x) first, prepay Swingline Loans in accordance with an amount equal to the procedures set forth product of such Defaulting Lender’s Pro Rata Percentage times the Swingline Loans outstanding, and (y) second, cash collateralize Letters of Credit in Section 2.04(i) for so long as an amount equal to the product of such Defaulting Lender’s Pro Rata Percentage times the total LC Exposure is outstandingAmount;
(iii) if the Company cash collateralizes any portion of such Defaulting Lender’s LC Exposure the Letters of Credit is cash collateralized pursuant to this Section 2.18(c)clause (ii) above, the Company Borrowers shall not be required to pay any fees to such Defaulting Lender pursuant to the Letter of Credit fee described in clause (i) of Section 2.10(b) 3.4 with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure portion so long as it is cash collateralized;
(iv) if any portion of the LC Exposure exposure under Letters of Credit of such Defaulting Lender is reallocated to the non-Defaulting Lenders is reallocated pursuant to this Section 2.18(c)clause (i) above, then the fees payable Letter of Credit fee described in clause (i) of Section 3.4 with respect to the Lenders pursuant such portion so reallocated to Sections 2.10(a) and 2.10(b) shall be adjusted in accordance with each such non-Defaulting Lenders’ Applicable PercentagesLender shall then be paid to such non-Defaulting Lender; orand
(v) if any portion of the exposure under Letters of Credit of such Defaulting Lender’s LC Exposure Lender is neither cash collateralized nor reallocated pursuant to this Section 2.18(c)subsection 4.11.2, then, without prejudice to any rights or remedies of any Issuing Lender Bank or any Lender hereunder, all commitment fees the Unused Line Fee that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Revolving Credit Commitment that was utilized by such LC ExposureLetters of Credit) and letter the Letter of credit fees Credit fee described in clause (i) of Section 3.4 payable under Section 2.10(b) with respect to such Defaulting Lender’s LC Exposure Letters of Credit shall be payable to the applicable Issuing Lender(s) Bank until such LC Exposure is Letters of Credit are fully cash collateralized and/or reallocated;.
(d) so 4.11.3 So long as any Lender is a Defaulting Lender, the Issuing Lenders Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, extend, amend or increase any Letter of Credit, unless the applicable Issuing Lender it is reasonably satisfied that the related exposure will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers collateralized in accordance with this Section 2.18(c)subsection 4.11.2, and participating interests participations in any such newly issued, extended issued or increased Letter of Credit or newly made Swingline Loan shall be allocated among non-Defaulting Lenders in a manner consistent accordance with Section 2.18(c)(i) their respective Pro Rata Percentages (and Defaulting Lenders shall not participate therein); and.
(e) any 4.11.4 Any amount payable to such a Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.16(d) but excluding Section 2.17(b)subsection 13.5.6) shallmay, in lieu of being distributed to such Defaulting Lender, be retained by the Administrative Agent in a segregated non-interest bearing account and, subject to any applicable requirements of lawApplicable 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 Lender to the Administrative Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to any Issuing LenderBank or Swingline Lender hereunder, (iii) third, if so determined by the Administrative Agent or requested by an Issuing Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in any Letter of Credit, (iv) fourth, to the funding of any Loan or the funding or cash collateralization of any participation in any Swingline Loan or Letter of Credit in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (viv) fifthfourth, if so determined by the Administrative Agent and the Borrower RepresentativeBorrowers, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Loans under this Agreement, (viv) sixthfifth, pro rata, to the payment of any amounts owing to Borrowers or the Lenders or an Issuing Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender Borrower or such Issuing any Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, (vii) seventh, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, Agreement and (viiivi) eighthsixth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided provided, that if such payment is (x) a prepayment of the principal amount of any Loans or reimbursement obligations LC Obligations in respect of LC Disbursements for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 3.02 are satisfiedobligations, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations LC Obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any LoansLoans of, or reimbursement obligations LC Obligations owed to, any Defaulting Lender. .
4.11.5 In the event that the Administrative Agent, the Company Borrowers, Issuing Bank and the Issuing Lenders Swingline Lender agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the LC Exposure exposure of the Lenders under the Swingline Loans and Letters of Credit shall be readjusted to reflect the inclusion of such Defaulting Lender’s Revolving Credit Commitment and on such date such Defaulting Lender shall purchase at par such of the Revolving Credit Loans of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Defaulting Lender to hold such Revolving Credit Loans in accordance with its Applicable PercentagePro Rata Percentage and Borrowers shall no longer be required to cash collateralize any Letters of Credit as provided in subsection 4.11.2(ii) above. The rights and remedies against a Defaulting Lender under this Section 4.11 are in addition to other rights and remedies that Borrowers, Administrative Agent, Issuing Bank, Swingline Lender and the non-Defaulting Lenders may have against such Defaulting Lender. The arrangements permitted or required by this Section 4.11 shall be permitted under this Agreement, notwithstanding any limitation on Liens or the pro rata sharing provisions or otherwise.
Appears in 1 contract
Sources: Loan and Security Agreement (Ani Pharmaceuticals Inc)
Defaulting Lender. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(ai) commitment fees The Commitment Fee shall cease to accrue on the unfunded portion of the Revolving Credit Commitment of such Defaulting Lender pursuant to Section 2.10(a)Lender;
(bii) the Revolving Credit Commitment and Revolving The Credit Exposure and Available Commitment of such Defaulting Lender shall not be included in determining whether all Lenders, all affected Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 10.029.1); provided, other than pursuant to Section 10.02(b)(i)that (i) such Defaulting Lender’s Commitment may not be increased or extended without its consent and (ii) the principal amount of, 10.02(b)(ii) or 10.02(b)(iii) that directly affects such Lender)interest payable on, provided that any waiver, amendment or modification requiring the consent Loans of all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require may not be reduced or excused or the consent scheduled date of payment may not be postponed as to such Defaulting Lender without such Defaulting Lender’s consent;
(ciii) if If any LC Swing Line Exposure exists at the time such Lender becomes a Defaulting Lender then:
(ia) all or any part of the Swing Line Exposure of such LC Exposure Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages but only to Commitment Percentages, provided that such reallocation does not cause the extent (x) the sum aggregate Credit Exposure of all any non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s LC Exposure does not Lender to exceed the total of all non-Defaulting Lenders’ Revolving Credit Commitments and (y) the conditions set forth in Section 5.02 are satisfied at such time;its Commitment; and
(iib) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Company shall applicable Borrowers shall, within one two Business Day Days following notice by the Administrative Agent cash collateralize Agent, prepay such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(i) for so long as such LC Exposure is outstanding;
(iii) if the Company cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to this Section 2.18(c), the Company shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.10(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralizedSwing Line Exposure;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.18(c), then the fees payable to the Lenders pursuant to Sections 2.10(a) and 2.10(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; or
(v) if any Defaulting Lender’s LC Exposure is neither cash collateralized nor reallocated pursuant to this Section 2.18(c), then, without prejudice to any rights or remedies of any Issuing Lender or any Lender hereunder, all commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.10(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Lender(s) until such LC Exposure is cash collateralized and/or reallocated;
(d) so long as any such Lender is a Defaulting Lender, the Issuing Lenders Swing Line Lender shall not be required to issue, extend, amend or increase fund any Letter of Credit, Swing Line Loan unless the applicable Issuing Lender it is satisfied that the related exposure will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers in accordance with this Section 2.18(c)Lenders, and participating interests in any such newly issued, extended or increased Letter of Credit made Swing Line Loan shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.18(c)(i2.18(iii)(a) (and such Defaulting Lenders Lender shall not participate therein); and.
(e) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.16(d) but excluding Section 2.17(b)) shall, in lieu of being distributed to such Defaulting Lender, 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 Lender to the Administrative Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to any Issuing Lender, (iii) third, if so determined by the Administrative Agent or requested by an Issuing Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in any Letter of Credit, (iv) fourth, to the funding of any Loan in respect of which such Defaulting Lender 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 Borrower Representative, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders or an Issuing Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender or such Issuing Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, (vii) seventh, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, and (viii) eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is (x) a prepayment of the principal amount of any Loans or reimbursement obligations in respect of LC Disbursements for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 3.02 are satisfied, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Lender. In the event that the Administrative Agent, the Company Borrowers and the Issuing Lenders Swing Line Lender all agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the LC Swing Line Exposure of the Lenders shall be readjusted to reflect the inclusion of such Defaulting Lender’s Revolving Credit Commitment and on such date such Defaulting Lender shall purchase at par such of the Loans of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Defaulting Lender to hold such Loans in accordance with its Applicable Commitment Percentage.
Appears in 1 contract
Defaulting Lender. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion of the Revolving Credit Commitment of such Defaulting Lender pursuant to Section 2.10(a)2.3;
(b) the Revolving Credit Commitment and Revolving Extensions of Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, all affected Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment amendment, modification, waiver or waiver supplement pursuant to Section 10.0210.1); provided, other than pursuant that this clause (b) shall NAI-1513061749v11 39 not apply to Section 10.02(b)(i)the vote of a Defaulting Lender in the case of an amendment, 10.02(b)(ii) modification, waiver or 10.02(b)(iii) that directly affects such Lender), provided that any waiver, amendment or modification supplement requiring the consent of all Lenders such Lender or each Lender affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lenderthereby;
(c) if any LC Swingline Exposure exists at the time such Lender becomes a Defaulting Lender Lender, then:
(i) all or the Swingline Exposure (other than any part portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.20(c)) of such LC Exposure Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Revolving Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Extensions of Credit Exposures plus such Defaulting Lender’s LC Exposure does do not exceed the total of all non-Defaulting Lenders’ Revolving Credit Commitments and (y) the conditions set forth in Section 5.02 are satisfied at such time;Commitments; and
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Company Borrower shall within one (1) Business Day following written notice by the Administrative Agent cash collateralize such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(i) for so long as such LC Exposure is outstanding;
(iii) if the Company cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to this Section 2.18(c), the Company shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.10(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.18(c), then the fees payable to the Lenders pursuant to Sections 2.10(a) and 2.10(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; or
(v) if any Defaulting Lender’s LC Exposure is neither cash collateralized nor reallocated pursuant to this Section 2.18(c), then, without prejudice to any rights or remedies of any Issuing Lender or any Lender hereunder, all commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to prepay the portion of such Defaulting Lender’s Commitment Swingline Exposure (other than any portion thereof referred to in the parenthetical in such clause (i)) that was utilized by has not been reallocated as set forth in such LC Exposure) and letter of credit fees payable under Section 2.10(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Lender(s) until such LC Exposure is cash collateralized and/or reallocatedclause;
(d) so long as any such Lender is a Defaulting Lender, the Issuing Lenders Swing Line Lender shall not be required to issue, extend, amend or increase fund any Letter of Credit, Swing Line Loan unless the applicable Issuing Lender it is satisfied that the related exposure and such Defaulting Lender’s then outstanding Swing Line Exposure will be 100% fully covered by the Revolving Credit Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers in accordance with this Section 2.18(c)Lenders, and participating interests in any such newly issued, extended or increased Letter of Credit shall funded Swing Line Loan will be allocated among the non-Defaulting Lenders in a manner consistent with Section 2.18(c)(iclause (c)(i) above (and such Defaulting Lenders Lender shall not participate therein); and
(e) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.16(d) but excluding Section 2.17(b)) shall, in lieu of being distributed to such Defaulting Lender, 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 Lender to the Administrative Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to any Issuing Lender, (iii) third, if so determined by the Administrative Agent or requested by an Issuing Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in any Letter of Credit, (iv) fourth, to the funding of any Loan in respect of which such Defaulting Lender 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 Borrower Representative, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders or an Issuing Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender or such Issuing Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, (vii) seventh, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, and (viii) eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is (x) a prepayment of the principal amount of any Loans or reimbursement obligations in respect of LC Disbursements for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 3.02 are satisfied, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Lender. In the event that the Administrative Agent, the Company Borrower and the Issuing Lenders Swing Line Lender agree in writing that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the LC Swingline Exposure of the Lenders shall be readjusted to reflect the inclusion of such Defaulting Lender’s Revolving Credit Commitment and on such date such Defaulting Lender shall purchase at par such of the Revolving Loans and participations in Swing Line Loans of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Defaulting Lender to hold such Revolving Loans and participations in Swing Line Loans in accordance with its Applicable Revolving Percentage, whereupon such Lender shall cease to be a Defaulting Lender.
Appears in 1 contract
Defaulting Lender. . Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) commitment fees 4.11.1 The Unused Line Fee shall cease to accrue on the unfunded portion of the Revolving Credit Commitment of such Lender so long as it is a Defaulting Lender (except to the extent it is payable to an Issuing Bank pursuant to Section 2.10(asubsection 4.11.2(v) below);
(b) the Revolving 4.11.2 If any Letters of Credit Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, all affected Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.02, other than pursuant to Section 10.02(b)(i), 10.02(b)(ii) or 10.02(b)(iii) that directly affects such Lender), provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lender;
(c) if any LC Exposure exists are outstanding at the time such a Lender becomes a Defaulting Lender then:
(iA) the exposure under all or any part of such LC Exposure any Letters of Credit shall be reallocated among the applicable non-Defaulting Lenders that are Revolving Credit Lenders in accordance with their respective Applicable Pro Rata Percentages but only to the extent (x) the sum of all such non-Defaulting Lenders’ Revolving Credit Exposures Loans outstanding, plus such Defaulting Lender’s the LC Exposure Amount, does not exceed the total of all such non-Defaulting Lenders’ Revolving Credit Commitments Commitments; and (yB) with respect to any such exposure so reallocated, each applicable non-Defaulting Lender shall be deemed to have irrevocably and unconditionally purchased from the conditions set forth Issuing Bank an undivided interest and participation in the portion of each Letter of Credit so reallocated, in accordance with the applicable provisions of Section 5.02 are satisfied at 2.2. Subject to Section 3.12, no reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that L▇▇▇▇▇ having become a Defaulting Lender, including any claim of a non-Defaulting Lender as a result of such timenon-Defaulting L▇▇▇▇▇’s increased exposure following such reallocation;
(ii) if the reallocation reallocations described in clause (i) above cannot, or can only partially, be effected, the Company Borrowers shall within one (1) Business Day following notice by the Administrative Agent cash collateralize such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) cash collateralize Letters of Credit in accordance with an amount equal to the procedures set forth in Section 2.04(i) for so long as product of such Defaulting Lender’s Pro Rata Percentage times the total LC Exposure is outstandingAmount;
(iii) if the Company cash collateralizes any portion of such Defaulting Lender’s LC Exposure the Letters of Credit is cash collateralized pursuant to this Section 2.18(c)clause (ii) above, the Company Borrowers shall not be required to pay any fees to such Defaulting Lender pursuant to the Letter of Credit fee described in clause (i) of Section 2.10(b) 3.4 with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure portion so long as it is cash collateralized;
(iv) if any portion of the LC Exposure exposure under Letters of Credit of such Defaulting Lender is reallocated to the non-Defaulting Lenders is reallocated pursuant to this Section 2.18(c)clause (i) above, then the fees payable Letter of Credit fee described in clause (i) of Section 3.4 with respect to the Lenders pursuant such portion so reallocated to Sections 2.10(a) and 2.10(b) shall be adjusted in accordance with each such non-Defaulting Lenders’ Applicable PercentagesLender shall be paid to such non-Defaulting Lender; orand
(v) if any portion of the exposure under Letters of Credit of such Defaulting Lender’s LC Exposure Lender is neither cash collateralized nor reallocated pursuant to this Section 2.18(c)subsection 4.11.2, then, without prejudice to any rights or remedies of any Issuing Lender Bank or any Lender hereunder, all commitment fees the Unused Line Fee that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Revolving Credit Commitment that was utilized by such LC ExposureLetters of Credit) and letter the Letter of credit fees Credit fee described in clause (i) of Section 3.4 payable under Section 2.10(b) with respect to such Defaulting Lender’s LC Exposure Letters of Credit shall be payable to the applicable Issuing Lender(s) Bank until such LC Exposure is Letters of Credit are fully cash collateralized and/or reallocated;.
(d) so 4.11.3 So long as any Lender is a Defaulting Lender, the no Issuing Lenders Bank shall not be required to issue, extend, amend or increase any Letter of Credit, unless the applicable Issuing Lender it is satisfied that the related exposure will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers collateralized in accordance with this Section 2.18(c)subsection 4.11.2, and participating interests participations in any such newly issued, extended issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent accordance with Section 2.18(c)(i) their respective Pro Rata Percentages (and Defaulting Lenders shall not participate therein); and.
(e) any 4.11.4 Any amount payable to such a Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.16(d) but excluding Section 2.17(b)subsection 13.5.6) shallmay, in lieu of being distributed to such Defaulting Lender, be retained by the Administrative Agent in a segregated non-interest bearing account and, subject to any applicable requirements of lawApplicable 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 Lender to the Administrative Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to any Issuing LenderBank hereunder, (iii) third, if so determined by the Administrative Agent or requested by an Issuing Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in any Letter of Credit, (iv) fourth, to the funding of any Loan or the funding or cash collateralization of any participation in any Letter of Credit in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (viv) fifthfourth, if so determined by the Administrative Agent and the Borrower RepresentativeB▇▇▇▇▇▇▇▇, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Loans under this Agreement, (viv) sixthfifth, pro rata, to the payment of any amounts owing to Borrowers or the Lenders or an Issuing Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender Borrower or such Issuing any Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, (vii) seventh, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, Agreement and (viiivi) eighthsixth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided provided, that if such payment is (x) a prepayment of the principal amount of any Loans or reimbursement obligations LC Obligations in respect of LC Disbursements for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 3.02 are satisfiedobligations, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations LC Obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any LoansLoans of, or reimbursement obligations LC Obligations owed to, any Defaulting Lender. .
4.11.5 In the event that the Administrative Agent, the Company Borrowers and the Issuing Lenders Bank agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the LC Exposure exposure of the Lenders under the Letters of Credit shall be readjusted to reflect the inclusion of such Defaulting LenderL▇▇▇▇▇’s Revolving Credit Commitment and on such date such Defaulting Lender shall purchase at par such of the Revolving Credit Loans of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Defaulting Lender to hold such Revolving Credit Loans in accordance with its Applicable Pro Rata Percentage. The rights and remedies against a Defaulting Lender under this Section 4.11 are in addition to other rights and remedies that Borrowers, Administrative Agent, Issuing Bank and the non-Defaulting Lenders may have against such Defaulting Lender. The arrangements permitted or required by this Section 4.11 shall be permitted under this Agreement, notwithstanding any limitation on Liens or the pro rata sharing provisions or otherwise.
Appears in 1 contract
Sources: Loan, Security and Guaranty Agreement (Quest Resource Holding Corp)
Defaulting Lender. Notwithstanding any provision of this Agreement to the contrary, if If any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) commitment fees such Defaulting Lender’s Revolving Commitment and outstanding Revolving Loans shall cease be excluded for purposes of calculating the fee payable to accrue on the unfunded portion Lenders in respect of the Unused Line Fee, and such Defaulting Lender shall not be entitled to receive any Unused Line Fee with respect to such Defaulting Lender’s Revolving Credit Commitment or Revolving Loans (in each case not including any fee in connection with any portion of such Defaulting Lender Lenders Revolving Commitment that has been reallocated to non-Defaulting Lenders pursuant to Section 2.10(a10.21(d) hereof);.
(b) the Revolving Credit Commitment Commitments and Revolving Credit Exposure Loans of such Defaulting Lender shall not be included in determining whether all Lenders, all affected Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.02, other than pursuant to Section 10.02(b)(i10.5), 10.02(b)(ii) or 10.02(b)(iii) that directly affects such Lender), provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lender;.
(c) if any LC Exposure exists at in the time such Lender becomes event a Defaulting Lender then:
(i) all or has defaulted on its obligation to fund any part of such LC Exposure shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s LC Exposure does not exceed the total of all non-Defaulting Lenders’ Revolving Credit Commitments and (y) the conditions set forth in Section 5.02 are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannotLoan, or can only partially, be effected, the Company shall within one Business Day following notice by the Administrative Agent cash collateralize such Defaulting Lender’s LC Exposure (after giving effect to purchase any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(i) for so long as such LC Exposure is outstanding;
(iii) if the Company cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to this Section 2.18(c), the Company shall not be required to pay any fees to such Defaulting Lender participation pursuant to Section 2.10(b) 1.5 hereof, until such time as the Default Excess with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant Lender has been reduced to this Section 2.18(c)zero, then the fees payable to the Lenders pursuant to Sections 2.10(a) and 2.10(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; or
(v) if any Defaulting Lender’s LC Exposure is neither cash collateralized nor reallocated pursuant to this Section 2.18(c), then, without prejudice to any rights prepayments or remedies of any Issuing Lender or any Lender hereunder, all commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.10(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Lender(s) until such LC Exposure is cash collateralized and/or reallocated;
(d) so long as any Lender is a Defaulting Lender, the Issuing Lenders shall not be required to issue, extend, amend or increase any Letter of Credit, unless the applicable Issuing Lender is satisfied that the related exposure will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers in accordance with this Section 2.18(c), and participating interests in any such newly issued, extended or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.18(c)(i) (and Defaulting Lenders shall not participate therein); and
(e) any amount payable to such Defaulting Lender hereunder (whether repayments on account of principalthe Revolving Loans or participations pursuant to Section 1.5, interest, fees or otherwise and including any amount that in each case to the extent they would be otherwise be payable to such Defaulting Lender pursuant to Section 2.16(d) but excluding Section 2.17(b)) shall, in lieu of being distributed to such Defaulting Lender, be retained by the Administrative Agent in a segregated account and, subject to any applicable requirements of law, shall 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 Lender to the Administrative Agent hereunder, (ii) ; second, pro rata, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Issuing Lender, (iii) the LC Issuer of Lender Letters of Credit and to each Letter of Credit guarantor/indemnitor in respect of Supported Letters of Credit; third, if so determined by the Administrative Agent or requested by an Issuing Lender, to be held in such account as provide cash collateral for future funding obligations in the amount of the Defaulting Lender 103% of any participating interest in any Letter LC Issuer’s Fronting Exposure with respect to such Defaulting Lender; fourth, as the Borrowers may request (so long as no Default or Event of Credit, (iv) fourthDefault exists), to the funding of any Loan in respect of which such Defaulting Lender 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 Borrower RepresentativeBorrowers, to be held in a Deposit Account and released pro rata in order to (x) satisfy such account as cash collateral for Defaulting Lender’s potential future funding obligations of the Defaulting Lender of any with respect to Loans under this Agreement and (y) provide cash collateral in the amount of 103% of the LC Issuers’ future Fronting Exposure with respect to such Defaulting Lender with respect to future Lender Letters of Credit issued under this Agreement, (vi) ; sixth, to the payment of any amounts owing to Agent, the Lenders Lenders, any LC Issuers or an Issuing Lender any Letter of Credit guarantor/indemnitor as a result of any judgment of a court of competent jurisdiction obtained by Agent, any Lender Lender, any LC Issuer or such Issuing Lender Letter of Credit guarantor/indemnitor against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, (vii) seventhso long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, ; and (viii) eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that provided, that, if (x) such payment is (x) a prepayment payment of the principal amount of any Loans or reimbursement obligations Letter of Credit Liabilities in respect of LC Disbursements for which a such Defaulting Lender has not fully funded its participation obligations appropriate share and (y) such Loans or Letter of Credit Liabilities were made at a time when the conditions set forth in Section 3.02 are satisfied1.6 were satisfied or waived, such payment shall be applied solely to prepay pay the Loans of, and reimbursement obligations Letter of Credit Liabilities owed to, all non-Defaulting Lenders on a pro rata basis prior to being applied to the prepayment payment of any LoansLoans of, or reimbursement obligations Letter of Credit Liabilities owed to, such Defaulting Lender. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 10.21(c) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
(d) If any Letter of Credit Liabilities exist at the time a Lender becomes a Defaulting Lender then:
(i) so long as no Default or Event of Default then exists, all or any part of such Letter of Credit Liabilities shall be reallocated among the non-Defaulting Lenders in accordance with their respective Pro Rata Shares of the total Revolving Commitments (calculated without regard to such Defaulting Lender’s Revolving Commitments), provided that no Lender’s Revolving Exposure shall exceed its Revolving Commitment;
(ii) if the reallocation described in paragraph (i) above cannot, or can only partially, be effected, the Borrowers shall within one (1) Business Day following notice by Agent, cash collateralize such Defaulting Lender’s Pro Rata Share of all Letter of Credit Liabilities (after giving effect to any partial reallocation pursuant to paragraph (i) above) for so long as any such Letter of Credit Liabilities remain are outstanding;
(iii) if the Borrowers cash collateralize any portion of such Defaulting Lender’s Pro Rata Share of the Letter of Credit Liabilities pursuant to this Section 10.21(d), the Borrowers shall not be required to pay any Letter of Credit Fees to such Defaulting Lender with respect to the portion of such Defaulting Lender’s Pro Rata Share of the Letter of Credit Liabilities which have been cash collateralized (and the Defaulting Lender shall not be entitled to receive any such fees);
(iv) if the Defaulting ▇▇▇▇▇▇’s Pro Rata Share of the Letter of Credit Liabilities is reallocated pursuant to this Section 10.21(d), then the Letter of Credit Fees payable to the non-Defaulting Lenders shall be adjusted accordingly; and
(v) if any Defaulting Lender. ’s Pro Rata Share of the Letter of Credit Liabilities is not cash collateralized or reallocated pursuant to this Section 10.21(d), then without prejudice to any rights or remedies of the applicable Letter of Credit guarantor/indemnitor or LC Issuer hereunder, all Letter of Credit Fees payable hereunder with respect to such Defaulting ▇▇▇▇▇▇’s Pro Rata Share of the Letter of Credit Liabilities shall be payable to the applicable LC Issuer or if applicable, the Letter of Credit guarantor/indemnitor.
(e) So long as any Lender is a Defaulting Lender, no LC Issuer shall be required to issue, extend or increase any Letter of Credit and neither Agent nor any Lender shall be required to provide or enter into any Support Agreement in respect of a Letter of Credit, in each case unless it is reasonably satisfied that the related exposure will be 100% covered by the Revolving Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers, and participating interests in any such newly issued, extended or increased Letter of Credit or Support Agreement shall be allocated among non-Defaulting Lenders in a manner consistent with Section 10.21(d) (and Defaulting Lenders shall not participate therein).
(f) No reallocation permitted pursuant to Section 10.21(d) shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that ▇▇▇▇▇▇ having become a Defaulting Lender, including any claim of a non-Defaulting Lender as a result of such non-Defaulting Lender’s increased exposure following such reallocation.
(g) In the event that the Administrative Agent, the Company LC Issuers and the Issuing Lenders agree each Letter of Credit guarantor/indemnitor each agrees in writing that a Defaulting Lender has adequately remedied all matters that which caused such Lender to be become a Defaulting Lender, then the LC Exposure Pro Rata Shares of the Letter of Credit Liabilities of the Lenders shall be readjusted to reflect the inclusion of such Defaulting Lender▇▇▇▇▇▇’s Revolving Credit Commitment and on such date such Defaulting Lender shall purchase at par such of the Revolving Loans of the other Lenders or participations in the Revolving Loans as the Administrative Agent shall determine may be necessary in order for such Defaulting Lender to hold such Revolving Loans or participations in accordance with its Applicable PercentagePro Rata Share; provided, that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers while that Lender was a Defaulting Lender; provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to any other Lender will constitute a waiver or release of any claim of any party hereunder arising from that ▇▇▇▇▇▇ having been a Defaulting Lender.
(h) The rights and remedies with respect to a Defaulting Lender under this Section 10.21 are in addition to any other rights and remedies which the Borrowers, Agent, the LC Issuers or any Letter of Credit guarantor/indemnitor, as applicable, may have against such Defaulting Lender.
Appears in 1 contract
Sources: Loan and Security Agreement (Nine Energy Service, Inc.)
Defaulting Lender. Notwithstanding any provision (a) If a Lender becomes, and during the period it remains, a Defaulting Lender, the following provisions shall apply: (i) such Defaulting Lenders’ Ratable Share of this Agreement the L/C Exposure and the Swing Line Advances will, subject to the contrarylimitation in the first proviso below, if automatically be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Non-Defaulting Lenders pro rata in accordance with their respective Commitments (such reallocation to be repeated as of any date that a Lender becomes a Defaulting Lender, then whether on the following provisions shall apply for so long as date that such Lender is a Defaulting Lender:
(a) commitment fees shall cease required to accrue on the unfunded portion purchase its participation in any Letter of the Revolving Credit Commitment of such Defaulting Lender pursuant to Section 2.10(aor otherwise);
(b) the Revolving Credit Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, all affected Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.02, other than pursuant to Section 10.02(b)(i), 10.02(b)(ii) or 10.02(b)(iii) that directly affects such Lender), ; provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lender;
(c) if any LC Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of such LC Exposure shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages but only to the extent (xA) the sum of all noneach Non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s LC Exposure does not exceed the total aggregate principal amount of all non-Defaulting Lenders’ Revolving Credit Commitments and (y) the conditions set forth in Section 5.02 are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannotAdvances, or can only partially, be effected, the Company shall within one Business Day following notice by the Administrative Agent cash collateralize such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(i) for so long as such LC Exposure is outstanding;
(iii) if the Company cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to this Section 2.18(c), the Company shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.10(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if the LC Exposure allocated share of the non-Defaulting Lenders is reallocated pursuant to this Section 2.18(c), then the fees payable to the Lenders pursuant to Sections 2.10(a) L/C Exposure and 2.10(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; or
(v) if any Defaulting Lender’s LC Exposure is neither cash collateralized nor reallocated pursuant to this Section 2.18(c), then, without prejudice to any rights or remedies of any Issuing Lender or any Lender hereunder, all commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.10(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Lender(s) until such LC Exposure is cash collateralized and/or reallocated;
(d) so long as any Lender is a Defaulting Lender, the Issuing Lenders shall not be required to issue, extend, amend or increase any Letter of Credit, unless the applicable Issuing Lender is satisfied that the related exposure will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers in accordance with this Section 2.18(c), and participating interests in any such newly issued, extended or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.18(c)(i) (and Defaulting Lenders shall not participate therein); and
(e) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.16(d) but excluding Section 2.17(b)) shall, in lieu of being distributed to such Defaulting Lender, 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 Lender to the Administrative Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to any Issuing Lender, (iii) third, if so determined by the Administrative Agent or requested by an Issuing Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in any Letter of Credit, (iv) fourth, to the funding of any Loan in respect of which such Defaulting Lender 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 Borrower Representative, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders or an Issuing Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender or such Issuing Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, (vii) seventh, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, and (viii) eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is (x) a prepayment share of the principal amount of outstanding Swing Line Advances may not in any Loans or reimbursement obligations in respect event exceed the Commitment of LC Disbursements for which a such Non- Defaulting Lender has funded its participation obligations as in effect at the time of such reallocation and (yB) made at neither such reallocation nor any payment by a time when the conditions set forth in Section 3.02 are satisfied, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all nonNon-Defaulting Lenders pro rata prior to being applied to the prepayment Lender pursuant thereto will constitute a waiver or release of any Loansclaim the Borrower, or reimbursement obligations owed tothe Agent, any Defaulting Lender. In the event that the Administrative AgentIssuing Bank, the Company and the Issuing Lenders agree that a any Swing Line Bank or any other Lender may have against such Defaulting Lender has adequately remedied all matters that caused or cause such Defaulting Lender to be a Non- Defaulting Lender, then the LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Defaulting Lender’s Revolving Credit Commitment and on such date such Defaulting Lender shall purchase at par such of the Loans of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Defaulting Lender to hold such Loans in accordance with its Applicable Percentage.; 34 NYDOCS02/1188161
Appears in 1 contract
Sources: Credit Agreement (Gatx Corp)
Defaulting Lender. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) commitment fees Facility Fees shall cease to accrue on the unfunded portion of the Revolving Credit Commitment of such Defaulting Lender pursuant to Section 2.10(a)2.11;
(b) such Defaulting Lender and the Revolving Credit Commitment and Revolving Extensions of Credit Exposure of such Defaulting Lender shall not be included in determining whether all the Lenders, all affected Lenders or the Required Lenders, Majority Facility Lenders under such Facility or any directly affected Lender under such Facility have taken or may take any action hereunder (including any consent to any amendment amendment, consent, waiver or waiver other modification pursuant to Section 10.0210.1); provided, that this clause (b) shall not apply in the case of an amendment, waiver or other than pursuant to Section 10.02(b)(i), 10.02(b)(iimodification that has the effect of (i) increasing the amount or 10.02(b)(iii) that directly affects such Lender), provided that any waiver, amendment or modification requiring extending the consent expiration date of all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent any portion of such Defaulting Lender;’s Commitment or extending the final scheduled maturity date of any Loan held by such Defaulting Lender, (ii) forgiving or reducing any principal amount of any Loan or any Reimbursement Obligation owing to such Defaulting Lender, or (iii) reducing the stated rate of any interest or fees payable to such Defaulting Lender hereunder, or extending the scheduled date of any payment required hereunder (for the purpose of clarity, the foregoing clauses (i), (ii), and (iii) shall not include any waiver of a mandatory prepayment and shall not preclude a waiver of applicability of any post-default increases in interest rates).
(c) if any LC Exposure exists L/C Obligations exist at the time such any Domestic Lender becomes a Defaulting Lender then:
(i) so long as no Event of Default shall have occurred and be continuing at such time all or any part of the L/C Obligations of such LC Exposure Defaulting Lender shall be reallocated among the non-Domestic Lenders that are not Defaulting Lenders in accordance with their respective Applicable Domestic Percentages (calculated without regard to such Defaulting Lender) but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Domestic Extensions of Credit Exposures plus outstanding Domestic Competitive Loans plus such Defaulting Lender’s LC Exposure L/C Obligations does not exceed the total of all non-Domestic Lenders that are not Defaulting Lenders’ Revolving Credit Commitments and (y) the conditions set forth in Section 5.02 are satisfied at such timeDomestic Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Company shall within one Business Day or any Domestic Subsidiary Borrower shall, at any time and from time to time following notice by the Administrative Agent cash collateralize Agent, Collateralize for the benefit of each Issuing Lender that is not, itself, a Defaulting Lender, the Borrowers’ obligations corresponding to such Defaulting Lender’s LC Exposure L/C Obligations (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(i) for so long as such LC Exposure is outstandingL/C Obligations are outstanding or, if sooner, so long as such Defaulting Lender remains a Defaulting Lender (it being expressly understood and agreed that all accrued interest on such Collateralization shall be for the account of the Company or such applicable Subsidiary Borrower and shall be paid to the Company or such applicable Subsidiary Borrower at any time and from time to time upon its request therefor; provided, that no Event of Default shall have then occurred and be continuing);
(iii) if the Company cash collateralizes or any Subsidiary Borrower Collateralizes any portion of such Defaulting Lender’s LC Exposure L/C Obligations pursuant to this Section 2.18(c)clause (ii) above, neither the Company nor any relevant Subsidiary Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.10(b) 3.3 with respect to such Defaulting Lender’s LC Exposure L/C Obligations during the period and to the extent such Defaulting Lender’s LC Exposure is cash collateralizedL/C Obligations are so Collateralized;
(iv) if the LC Exposure L/C Obligations of the non-Defaulting Lenders is are reallocated pursuant to this Section 2.18(c)clause (i) above, then the fees payable to the non-Defaulting Lenders pursuant to Sections 2.10(a) Section 2.11 and 2.10(b) Section 3.3, as applicable, shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable PercentagesDomestic Percentages of the Domestic Commitments calculated without regard to such Defaulting Lender’s Domestic Percentage of the Domestic Commitments; orand
(v) if all or any portion of such Defaulting Lender’s LC Exposure L/C Obligations is neither cash collateralized reallocated nor reallocated Collateralized pursuant to this Section 2.18(c)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the Company or any relevant Subsidiary Borrower, the applicable Issuing Lender or any other Domestic Lender hereunder, all commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion Letter of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees Credit Fees payable under Section 2.10(b) 3.3 with respect to such Defaulting Lender’s LC Exposure L/C Obligations shall be payable to the applicable Issuing Lender(s) Lender until and to the extent that such LC Exposure is cash collateralized L/C Obligations are so reallocated and/or reallocated;Collateralized; and
(d) so long as any no Issuing Lender is a Defaulting Lender, the Issuing Lenders shall not be required to issue, extendrenew, amend or increase any Letter of Credit unless it is reasonably satisfied that the related exposure and such Defaulting Lender’s then outstanding L/C Obligations will be 100% covered by the Domestic Commitments of the Domestic Lenders that are not Defaulting Lenders and/or Collateralized by the Company or any applicable Subsidiary Borrower in accordance with this Section 2.26 and participating interests in any newly issued or increased Letter of Credit shall be allocated among the Domestic Lenders that are not Defaulting Lenders in a manner consistent with this Section 2.26 (and such Defaulting Lender shall not participate therein). If (i) a Lender Insolvency Event with respect to the parent company of any Domestic Lender shall occur following the Closing Date and for so long as such event shall continue or (ii) any Domestic Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Domestic Lender commits to extend credit, no Issuing Lender shall be required to issue, amend or increase any Letter of Credit, unless the applicable such Issuing Lender is satisfied that shall have entered into arrangements with the related exposure will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers in accordance with this Section 2.18(c)Company or such Domestic Lender, and participating interests in any such newly issued, extended or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.18(c)(i) (and Defaulting Lenders shall not participate therein); and
(e) any amount payable satisfactory to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.16(d) but excluding Section 2.17(b)) shall, in lieu of being distributed to such Defaulting Lender, 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 Lender to the Administrative Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to any Issuing Lender, (iii) third, if so determined by the Administrative Agent or requested by an Issuing Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of defease any participating interest in any Letter of Credit, (iv) fourth, risk to the funding of any Loan it in respect of which such Domestic Lender hereunder. In the event that a Domestic Lender becomes a Defaulting Lender has failed to fund its portion thereof as required by this AgreementLender, as determined by the Administrative Agent, (v) fifth, if so determined by the Administrative Agent and the Borrower Representative, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Loans under this Agreement, (vi) sixth, shall give notice to the payment of any amounts owing to the Lenders or an Company and each affected Issuing Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender or stating that such Issuing Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, (vii) seventh, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, and (viii) eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is (x) a prepayment of the principal amount of any Loans or reimbursement obligations in respect of LC Disbursements for which a Defaulting Domestic Lender has funded its participation obligations and (y) made at become a time when the conditions set forth in Section 3.02 are satisfied, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Lender. In the event that each of the Administrative Agent, the Company Company, each relevant Subsidiary Borrower and the each affected Issuing Lenders agree Lender agrees that a Defaulting Lender has adequately remedied all matters that caused such Defaulting Lender to be a Defaulting Lender, then the LC Exposure L/C Obligations of the Domestic Lenders shall be readjusted to reflect the inclusion of such Defaulting Lender’s Revolving Credit Domestic Commitment and and, on such date date, such Defaulting Domestic Lender shall purchase at par such of the Loans and/or participations in the L/C Obligations of the other Domestic Lenders as the Administrative Agent shall determine may be necessary in order for such Defaulting Domestic Lender to hold such Domestic Loans and participations in the L/C Obligations in accordance with its Applicable PercentageDomestic Percentage of the Domestic Commitments.
Appears in 1 contract
Sources: 5 Year Revolving Credit Agreement (General Motors Financial Company, Inc.)
Defaulting Lender. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) commitment fees Commitment Fees shall cease to accrue on the unfunded portion of the Revolving Credit Available Unused Commitment of such Defaulting Lender pursuant to Section 2.10(a)Lender;
(b) the Any Revolving Credit Facility Commitment and or any Revolving Credit Exposure Facility Loan of such Defaulting Lender shall not be included in determining whether all the Required Lenders, all affected Required Tranche A Lenders, Special Majority Lenders or the Required Super Majority Lenders have taken or may take any action hereunder (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 10.029.08); provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other than pursuant to Section 10.02(b)(i), 10.02(b)(ii) or 10.02(b)(iii) that directly affects such Lender), provided that any waiver, amendment or modification requiring the consent of all Lenders such Lender under Section 9.04(a)(i) or each affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require subclauses (i), through (ix) of the consent of such Defaulting Lenderfirst proviso to Section 9.08(b);
(c) if If any LC Swingline Exposure or Revolving L/C Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and Revolving L/C Exposure of such LC Exposure Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Revolving Facility Percentages of Tranche A Revolving Facility Commitments but only to the extent (x) the sum of all non-Defaulting Lenders’ Tranche A Revolving Credit Exposures Facility Exposure plus such Defaulting Lender’s LC Swingline Exposure and Revolving L/C Exposure does not exceed the total of all non-Defaulting Lenders’ Tranche A Revolving Credit Commitments and (y) the conditions set forth in Section 5.02 are satisfied at such timeFacility Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Company applicable Borrower shall within one (1) Business Day following notice by the Administrative Agent cash collateralize (x) first, prepay such Swingline Exposure and (y) second, Cash Collateralize for the benefit of the applicable Issuing Bank only such Borrower’s obligations corresponding to such Defaulting Lender’s LC Revolving L/C Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(i2.05(j) for so long as such LC Revolving L/C Exposure is outstanding;
(iii) if the Company cash collateralizes any Borrower Cash Collateralizes any portion of such Defaulting Lender’s LC Revolving L/C Exposure pursuant to this Section 2.18(c)subclause (ii) above, the Company such Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.10(b) 2.12 with respect to such Defaulting Lender’s LC Revolving L/C Exposure during the period such Defaulting Lender’s LC Revolving L/C Exposure is cash collateralizedCash Collateralized;
(iv) if the LC Revolving L/C Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.18(c)subclause (i) above, then the fees payable to the Lenders pursuant to Sections 2.10(a) and 2.10(b) Section 2.12 shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable PercentagesRevolving Facility Percentages with respect to Tranche A Revolving Facility Commitments; orand
(v) if all or any portion of such Defaulting Lender’s LC Revolving L/C Exposure is neither cash collateralized reallocated nor reallocated Cash Collateralized pursuant to this Section 2.18(c)subclause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Lender Bank or any other Lender hereunder, all commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.10(b) 2.12 with respect to such Defaulting Lender’s LC Revolving L/C Exposure shall be payable to such Issuing Bank until and to the applicable Issuing Lender(s) until extent that such LC Revolving L/C Exposure is cash collateralized reallocated and/or reallocated;Cash Collateralized; and
(d) so So long as any such Lender is a Defaulting Lender, the Issuing Lenders Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, extend, amend or increase any Letter of Credit, unless the applicable Issuing Lender it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Revolving L/C Exposure will be 100% covered by the Tranche A Revolving Credit Facility Commitments of the non-Defaulting Lenders and/or cash collateral Cash Collateral will be provided by the Borrowers Borrower in accordance with this Section 2.18(c2.21(c), and participating interests in any such newly issued, extended made Swingline Loan or any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.18(c)(i2.21(c)(i) (and such Defaulting Lenders Lender shall not participate therein); and.
(e) any amount payable to such In the event that the Administrative Agent, the Borrowers, the Swingline Lender and the Issuing Banks each agrees that a Defaulting Lender hereunder has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and Revolving L/C Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Revolving Facility Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders (whether on account other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Revolving Facility Percentage.
(f) Any payment of principal, interest, fees or otherwise and including any amount that would otherwise be payable to other amounts received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, following an Event of Default or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 2.16(d) but excluding Section 2.17(b)) shall, in lieu of being distributed to such Defaulting Lender, be retained by the Administrative Agent in a segregated account and, subject to any applicable requirements of law, 9.06 shall be applied at such time or times as may be determined by the Administrative Agent (i) as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder, (ii) ; second, pro rata, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Issuing Lender, (iii) Bank or the Swingline Lender hereunder; third, if so determined by to Cash Collateralize the Administrative Agent or requested by an Issuing Lender, to be held in Revolving L/C Exposure of such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in any Letter of Credit, (iv) accordance with Section 2.05(j); fourth, to the funding of any Loan in respect of which such Defaulting Lender 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 Borrower Representative, to be held in a deposit account and released pro rata in order to (x) satisfy such account as cash collateral for Defaulting Lender’s potential future funding obligations of the Defaulting Lender of any with respect to Loans under this Agreement, and (viy) Cash Collateralize the future Revolving L/C Exposure of such Defaulting Lender with respect to future Letters of Credit issued under this Agreement, in accordance with Section 2.05(j); sixth, to the payment of any amounts owing to the Lenders Lenders, the Issuing Banks or an Issuing the Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender Lender, the Issuing Banks or such Issuing the Swingline Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, (vii) seventhso long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrowers applicable Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, ; and (viii) eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is (x) a prepayment of the principal amount of any Loans . Any payments, prepayments or reimbursement obligations in respect of LC Disbursements for which other amounts paid or payable to a Defaulting Lender has funded its participation obligations and that are applied (yor held) made at a time when the conditions set forth in Section 3.02 are satisfied, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations pay amounts owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Lender. In the event that the Administrative Agent, the Company and the Issuing Lenders agree that by a Defaulting Lender has adequately remedied all matters that caused or to post Cash Collateral pursuant to this Section 2.21 shall be deemed paid to and redirected by such Lender to be a Defaulting Lender, then the LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Defaulting Lender’s Revolving Credit Commitment and on such date such Defaulting each Lender shall purchase at par such of the Loans of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Defaulting Lender to hold such Loans in accordance with its Applicable Percentageirrevocably consents hereto.
Appears in 1 contract
Sources: Asset Based Revolving Credit Agreement (Momentive Performance Materials Inc.)
Defaulting Lender. Notwithstanding any provision of this Agreement anything herein to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion of the Revolving Credit Commitment of such Defaulting Lender pursuant to Section 2.10(a);
(b) the Revolving Credit Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, all affected Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.02, other than pursuant to Section 10.02(b)(i), 10.02(b)(ii) or 10.02(b)(iii) that directly affects such Lender), provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lender;
(c) if any LC Exposure exists Letter of Credit Liabilities exist at the time such a Lender becomes a Defaulting Lender then:
(ia) all or any part of such LC Exposure Letter of Credit Liabilities of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages (calculated without regard to such Defaulting Lender’s Percentage) but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Loans plus all non-Defaulting Lenders’ Letter of Credit Exposures Liabilities plus such Defaulting Lender’s LC Exposure Letter of Credit Liabilities does not exceed the total of all non-Defaulting Lenders’ Revolving Credit Commitments and (y) the conditions set forth in Section 5.02 5.2 are satisfied at such time (and, unless the Borrower shall have otherwise notified the Administrative Agent at such time, the Borrower shall be deemed to have represented and warranted that such conditions are satisfied at such time;); and
(iib) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Company Borrower shall within one Business Day following notice by the Administrative Agent cash collateralize such Defaulting Lender’s LC Exposure Letter of Credit Liabilities (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(i) 2.7.4 for so long as such LC Exposure Letter of Credit Liability is outstanding;
(iiic) if the Company Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure Letter of Credit Liability pursuant to this Section 2.18(c)2.7.4, the Company Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.10(b) 3.3.3 with respect to the cash collateralized portion of such Defaulting Lender’s LC Exposure Letter of Credit Liabilities during the period such Defaulting Lender’s LC Exposure is Letter of Credit Liabilities are cash collateralized;
(ivd) if the LC Exposure Letter of Credit Liabilities of the non-Defaulting Lenders is are reallocated pursuant to this Section 2.18(c)2.7.7, then the fees payable to the Lenders pursuant to Sections 2.10(a) and 2.10(b) Section 3.3.3 shall be adjusted to give effect to such reallocations in accordance with such non-Defaulting Lenders’ Applicable Percentages; or
(ve) if any Defaulting Lender’s LC Exposure Letter of Credit Liabilities is neither cash collateralized nor reallocated pursuant to this Section 2.18(c)2.7.7, then, without prejudice to any rights or remedies of any Issuing Lender the Issuer or any Lender hereunder, all commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.10(b) 3.3.3 with respect to such Defaulting Lender’s LC Exposure Letter of Credit Liabilities shall be payable to the applicable Issuing Lender(s) Issuer until such LC Exposure is Letter of Credit Liabilities are cash collateralized and/or reallocated;
(d) so long as any Lender is a Defaulting Lender, the Issuing Lenders shall not be required to issue, extend, amend or increase any Letter of Credit, unless the applicable Issuing Lender is satisfied that the related exposure will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers in accordance with this Section 2.18(c), and participating interests in any such newly issued, extended or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.18(c)(i) (and Defaulting Lenders shall not participate therein); and
(e) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.16(d) but excluding Section 2.17(b)) shall, in lieu of being distributed to such Defaulting Lender, 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 Lender to the Administrative Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to any Issuing Lender, (iii) third, if so determined by the Administrative Agent or requested by an Issuing Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in any Letter of Credit, (iv) fourth, to the funding of any Loan in respect of which such Defaulting Lender 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 Borrower Representative, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders or an Issuing Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender or such Issuing Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, (vii) seventh, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, and (viii) eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is (x) a prepayment of the principal amount of any Loans or reimbursement obligations in respect of LC Disbursements for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 3.02 are satisfied, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Lender. In the event that the Administrative Agent, the Company and the Issuing Lenders agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Defaulting Lender’s Revolving Credit Commitment and on such date such Defaulting Lender shall purchase at par such of the Loans of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Defaulting Lender to hold such Loans in accordance with its Applicable Percentage.
Appears in 1 contract
Defaulting Lender. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion of the Revolving Credit Available Commitment of such Defaulting Lender pursuant to under Section 2.10(a4.1(a);
(b) the Revolving Credit Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, all affected Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.02, other than pursuant to Section 10.02(b)(i), 10.02(b)(ii) or 10.02(b)(iii) that directly affects such Lender13.1), provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than each other affected Lenders applicable Lender shall require the consent of such Defaulting Lender;
(c) if any LC Exposure exists Swingline Loan or Letter of Credit is oustanding at the time such a Lender becomes a Defaulting Lender then:
(i) all or any part of such LC Defaulting Lender’s Swingline Loan and Letter of Credit Exposure shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s LC Swingline Exposure and Letter of Credit Exposure does not exceed the total of all non-Defaulting Lenders’ Revolving Credit Commitments and (y) the conditions set forth in Section 5.02 7 are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Company Borrower shall within one Business Day following notice by the Administrative Agent (x) first, prepay such Defaulting Lender’s Swingline Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) and (y) second, cash collateralize such Defaulting Lender’s LC Letter of Credit Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(i5.2(a) for so long as such LC Letter of Credit Exposure is outstanding;
(iii) if the Company Borrower cash collateralizes any portion of such Defaulting Lender’s LC Letter of Credit Exposure pursuant to this Section 2.18(c2.14(c), the Company Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.10(b4.1(b) with respect to such cash collateralized portion of such Defaulting Lender’s LC Letter of Credit Exposure during the period such Defaulting Lender’s LC Letter of Credit Exposure is cash collateralized;
(iv) if to the LC extent the Letter of Credit Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.18(c2.14(c), then the fees payable to the Lenders pursuant to Sections 2.10(aSection 4.1(a) and 2.10(bSection 4.1(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; or;
(v) if to the extent any Defaulting Lender’s LC Letter of Credit Exposure is neither cash collateralized nor reallocated pursuant to this Section 2.18(c2.14(c), then, without prejudice to any rights or remedies of any Issuing Lender the Letter of Credit Issuer or any Lender hereunder, all commitment fees that otherwise would have otherwise been payable to such Defaulting Lender (solely under Section 4.1(b) with respect to such portion of such Letter of Credit Exposure shall instead be payable to the Letter of Credit Issuer until such portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter Letter of credit fees payable under Section 2.10(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Lender(s) until such LC Credit Exposure is cash collateralized and/or or reallocated;
(dvi) so long as any Lender is a Defaulting Lender, the Issuing Lenders Swingline Lender shall not be required to fund any Swingline Loan and the Letter of Credit Issuer shall not be required to issue, extend, amend or increase any Letter of Credit, unless in each case, to the applicable Issuing Lender is satisfied that extent (x) the related exposure will be 100% covered by the Revolving Credit Commitments Defaulting Lender’s Applicable Percentage of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers in accordance with this Section 2.18(c), and participating interests in any such newly issued, extended Swingline Loans or increased Letter of Credit shall can not be allocated among non-reallocated pursuant to Section 2.14(c) or (y) the Swingline Lender or Letter of Credit Issuer, as applicable, has not otherwise entered into arrangements satisfactory to it and the Borrower to eliminate the Swingline Lender or Letter of Credit Issuer’s risk with respect to the Defaulting Lenders Lender’s participation in a manner consistent with Section 2.18(c)(i) (and Defaulting Lenders shall not participate therein)Swingline Loans or Letters of Credit; and
(evii) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.16(d13.8(b) but excluding Section 2.17(b)13.7) shall, in lieu of being distributed to such Defaulting Lender, 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 Lender to the Administrative Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to any Issuing Lenderthe Letter of Credit Issuer or Swingline Lender hereunder, (iii) third, if so determined by the Administrative Agent or requested by an Issuing a Letter of Credit Issuer or Swingline Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in any Swingline Loan or Letter of Credit, (iv) fourth, to the funding of any Loan in respect of which such Defaulting Lender 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 Borrower RepresentativeBorrower, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Revolving Credit Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders Lenders, in respect of obligations under this Agreement, a Letter of Credit Issuer or an Issuing Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender Lender, such Letter of Credit Issuer or such Issuing Swingline Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, (vii) seventh, to the payment of any amounts owing to the Borrowers Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, and (viii) eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is (x) a prepayment of the principal amount of any Revolving Credit Loans or reimbursement obligations drawings in respect of LC Disbursements Letter of Credits for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 3.02 7 are satisfied, such payment shall be applied solely to prepay the Revolving Credit Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Revolving Credit Loans, or reimbursement obligations owed to, any Defaulting Lender. In ; and
(d) in the event that the Administrative Agent, the Company Borrower, the Letter of Credit Issuer and the Issuing Lenders Swingline Lender each agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then such Lender shall cease to be a Defaulting Lender, and the LC Swingline Exposure and Letter of Credit Exposure of the Lenders shall be readjusted to reflect the inclusion of such Defaulting Lender’s Revolving Credit Commitment and on such date such Defaulting Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Defaulting Lender to hold such Loans in accordance with its Applicable Percentage.
Appears in 1 contract
Sources: Credit Agreement (Accellent Inc)
Defaulting Lender. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion of the Revolving Credit Commitment of such Defaulting Lender pursuant to Section 2.10(a)this Agreement;
(b) the Revolving Credit Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, all affected Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 10.029.02); provided, that in the case of an amendment, waiver or other than pursuant to Section 10.02(b)(i), 10.02(b)(ii) or 10.02(b)(iii) that directly affects such Lender), provided that any waiver, amendment or modification requiring the consent of all Lenders or of each Lender affected Lender which affects thereby, the Defaulting Lender’s consent shall be only be required with respect to (i) a proposed increase or extension of such Defaulting Lender differently than other affected Lenders shall require Lender’s Revolving Commitments and (ii) a proposed reduction or excuse, or a proposed postponement of the consent scheduled date of payment, of the principal amount of, or interest or fees payable on, any Loans or LC Disbursements as to any such Defaulting Lender;
(c) if any Swingline Exposure or LC Exposure exists at the time such a Lender becomes a Defaulting Lender then:
(i) provided no Event of Default exists and is continuing, all or any part of such the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the total of all non-Defaulting Lenders’ Revolving Credit Commitments and (y) the conditions set forth in Section 5.02 are satisfied at such timeCommitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Company Parent shall within one Business Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of the Issuing Bank only the Parent’s obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(i2.04(j) for so long as such LC Exposure is outstanding;
(iii) if the Company Parent cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to this Section 2.18(c2.19(c), the Company Parent shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.10(b) 2.10 with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.18(c2.19(c), then the fees payable to the Lenders pursuant to Sections 2.10(a) and 2.10(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; or
(v) if any Defaulting Lender’s LC Exposure is neither cash collateralized nor reallocated pursuant to this Section 2.18(c), then, without prejudice to any rights or remedies of any Issuing Lender or any Lender hereunder, all commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.10(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Lender(s) until such LC Exposure is cash collateralized and/or reallocated;
(d) so long as any Lender is a Defaulting Lender, the Issuing Lenders shall not be required to issue, extend, amend or increase any Letter of Credit, unless the applicable Issuing Lender is satisfied that the related exposure will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers in accordance with this Section 2.18(c), and participating interests in any such newly issued, extended or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.18(c)(i) (and Defaulting Lenders shall not participate therein); and
(e) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.16(d) but excluding Section 2.17(b)) shall, in lieu of being distributed to such Defaulting Lender, 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 Lender to the Administrative Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to any Issuing Lender, (iii) third, if so determined by the Administrative Agent or requested by an Issuing Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in any Letter of Credit, (iv) fourth, to the funding of any Loan in respect of which such Defaulting Lender 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 Borrower Representative, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders or an Issuing Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender or such Issuing Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, (vii) seventh, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, and (viii) eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is (x) a prepayment of the principal amount of any Loans or reimbursement obligations in respect of LC Disbursements for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 3.02 are satisfied, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Lender. In the event that the Administrative Agent, the Company and the Issuing Lenders agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Defaulting Lender’s Revolving Credit Commitment and on such date such Defaulting Lender shall purchase at par such of the Loans of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Defaulting Lender to hold such Loans in accordance with its Applicable Percentage.
Appears in 1 contract
Defaulting Lender. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) commitment all fees shall cease to accrue on the unfunded portion of the Revolving Credit Commitment of such Defaulting Lender pursuant to Section 2.10(a)5.1;
(b) the Revolving Credit Commitment and shares of the Revolving Credit Exposure of such or deemed Revolving Credit Exposure of, any Defaulting Lender shall not be included in determining whether all excluded for purposes of making a determination of Required Lenders, all affected Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.02, other than pursuant to Section 10.02(b)(i), 10.02(b)(ii) or 10.02(b)(iii) that directly affects such Lender), provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently less favorably than other affected Lenders shall require the consent of such Defaulting Lender;
(c) if any LC Swingline Exposure or Letter of Credit Exposure exists at the time such a Lender becomes a Defaulting Lender then:
(i) all or any part of such LC Swingline Exposure and Letter of Credit Exposure shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages Pro Rata Shares but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s LC Swingline Exposure and Letter of Credit Exposure does not exceed the total of all non-Defaulting Lenders’ Revolving Credit Commitments and (y) the conditions set forth in Section 5.02 9.2 are satisfied at such time;; and
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Company Borrower shall within one Business Day following notice by the Administrative Agent cash collateralize (x) first, prepay such Swingline Exposure and (y) second, Cash Collateralize such Defaulting Lender’s LC Outstanding Amount of the Letter of Credit Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(i) 3.3 for so long as such LC Letter of Credit Exposure is outstanding;
(iii) if the Company cash collateralizes Borrower Cash Collateralizes any portion of such Defaulting Lender’s LC Letter of Credit Exposure pursuant to this Section 2.18(c)clause (ii) above, the Company Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.10(b) Sections 5.2 or 5.3 with respect to such Defaulting Lender’s LC Letter of Credit Exposure during the period such Defaulting Lender’s LC Letter of Credit Exposure is cash collateralizedCash Collateralized;
(iv) if the LC Letter of Credit Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.18(c)clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.10(a) 5.2 and 2.10(b) 5.3 shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable PercentagesPro Rata Shares; orand
(v) if any Defaulting Lender’s LC Letter of Credit Exposure is neither cash collateralized nor reallocated pursuant to this Section 2.18(c)clause (i) above nor Cash Collateralized pursuant to clause (ii) above, then, without prejudice to any rights or remedies of any Issuing Lender the Letter of Credit Issuer or any Lender hereunder, all commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion Letter of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit Credit fees payable under Section 2.10(b) Sections 5.2 and 5.3 with respect to such Defaulting Lender’s LC Letter of Credit Exposure shall be payable to the applicable Issuing Lender(s) Letter of Credit Issuer until such LC Letter of Credit Exposure is cash collateralized Cash Collateralized and/or reallocated;; and
(d) so long as any Lender is a Defaulting Lender, the Issuing Lenders Swingline Lender shall not be required to fund any Swingline Advances and the Letter of Credit Issuer shall not be required to issue, extend, amend or increase any Letter of Credit, unless the applicable Issuing Lender it is satisfied that the related exposure will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers Borrower in accordance with this Section 2.18(c)clause (c)(ii) above, and participating interests in any such newly issued, extended issued or increased Letter of Credit or newly made Swingline Loan shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.18(c)(iclause (c)(i) above (and Defaulting Lenders shall not participate therein); and
(e) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.16(d) but excluding Section 2.17(b)) shall, in lieu of being distributed to such Defaulting Lender, 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 Lender to the Administrative Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to any Issuing Lender, (iii) third, if so determined by the Administrative Agent or requested by an Issuing Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in any Letter of Credit, (iv) fourth, to the funding of any Loan in respect of which such Defaulting Lender 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 Borrower Representative, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders or an Issuing Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender or such Issuing Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, (vii) seventh, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, and (viii) eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is (x) a prepayment of the principal amount of any Loans or reimbursement obligations in respect of LC Disbursements for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 3.02 are satisfied, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Lender. In the event that the Administrative Agent, Borrower, the Company Letter of Credit Issuer and the Issuing Lenders agree Swingline Lender each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the LC Swingline Exposure and Letter of Credit Exposure of the Lenders shall be readjusted to reflect the inclusion of such Defaulting Lender’s Revolving Credit Commitment and on such date such Defaulting Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Defaulting Lender to hold such Loans in accordance with its Applicable PercentagePro Rata Share.
Appears in 1 contract
Defaulting Lender. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion of the any Revolving Credit Commitment of such Defaulting Lender pursuant to Section 2.10(a)this Agreement;
(b) the Revolving Credit Commitment Commitments and the Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, all affected Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.02, other than pursuant to Section 10.02(b)(i), 10.02(b)(ii) or 10.02(b)(iii) that directly affects such Lender9.02), provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lender;
(c) if any Swingline Exposure or LC Exposure exists at the time such a Lender becomes a Defaulting Lender then:
(i) all or any part of such Swingline Exposure and LC Exposure shall be reallocated among the nonLenders which are not Defaulting Lenders (the “Non-Defaulting Lenders Lenders”) in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all nonNon-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the total of all nonNon-Defaulting Lenders’ Revolving Credit Commitments and (y) the conditions set forth in Section 5.02 4.02 are satisfied at such time;; and
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Company Borrowers shall within one Business Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(i2.04(j) for so long as such LC Exposure is outstanding;
(iii) if the Company Borrowers cash collateralizes collateralize any portion of such Defaulting Lender’s LC Exposure pursuant to this Section 2.18(c), the Company Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.10(b) 2.10 with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.18(c), then the fees payable to the Lenders pursuant to Sections 2.10(a) and 2.10(b) Section 2.10 shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; or
(v) if any Defaulting Lender’s LC Exposure is neither cash collateralized nor reallocated pursuant to this Section 2.18(c), then, without prejudice to any rights or remedies of any the Issuing Lender Bank or any Lender hereunder, all commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.10(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Lender(s) Bank until such LC Exposure is cash collateralized and/or reallocated;
(d) so long as any Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Lenders Bank shall not be required to issue, extend, amend or increase any Letter of Credit, unless the applicable Issuing Lender it is satisfied that the related exposure of the Defaulting Lender will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers in accordance with this Section 2.18(c), and participating interests in any such newly issued, extended issued or increased Letter of Credit or newly made Swingline Loan shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.18(c)(i) (and Defaulting Lenders shall not participate therein); and
(e) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.16(d) but excluding Section 2.17(b)2.16) shall, in lieu of being distributed to such Defaulting Lender, 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 Lender to the Administrative Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to any the Issuing LenderBank or Swingline Lender hereunder, (iii) third, if so determined by the Administrative Agent or requested by an Issuing Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in any Letter of Credit, (iv) fourth, to the funding of any Loan or the funding or cash collateralization of any participating interest in any Swingline Loan or Letter of Credit in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (viv) fifthfourth, if so determined by the Administrative Agent and the Borrower Representative, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Loans under this Agreement, (viv) sixthfifth, pro rata, to the payment of any amounts owing to the Borrowers or the Lenders or an Issuing Lender as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers or any Lender or such Issuing Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, (vii) seventh, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, Agreement and (viiivi) eighthsixth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is (x) a prepayment of the principal amount of any Loans or reimbursement obligations in respect of LC Disbursements for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 3.02 4.02 are satisfied, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all nonNon-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Lender. In the event that the Administrative Agent, the Company Borrower Representative, the Issuing Bank and the Issuing Lenders agree Swingline Lender each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Defaulting Lender’s Revolving Credit Commitment and on such date such Defaulting Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Defaulting Lender to hold such Loans in accordance with its Applicable Percentage.
Appears in 1 contract
Sources: Credit Agreement (Allscripts-Misys Healthcare Solutions, Inc.)
Defaulting Lender. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion of the Revolving Credit any Commitment of such Defaulting Lender pursuant to Section 2.10(a)this Agreement;
(b) the Revolving Credit Commitment Commitments and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, all affected Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 10.029.02); provided, that in the case of an amendment, waiver or other than pursuant to Section 10.02(b)(i), 10.02(b)(ii) or 10.02(b)(iii) that directly affects such Lender), provided that any waiver, amendment or modification requiring the consent of all Lenders or of each Lender affected Lender which affects thereby, the Defaulting Lender's consent shall be only be required with respect to (i) a proposed increase or extension of such Defaulting Lender differently than other affected Lenders shall require Lender's Commitments and (ii) a proposed reduction or excuse, or a proposed postponement of the consent scheduled date of payment, of the principal amount of, or interest or fees payable on, any Loans or LC Disbursements as to any such Defaulting Lender;
(c) if any Swingline Exposure or LC Exposure exists at the time such a Lender becomes a Defaulting Lender then:
(i) all or any part of such the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ ' Revolving Credit Exposures plus such Defaulting Lender’s 's Swingline Exposure and LC Exposure does not exceed the total of all non-Defaulting Lenders’ ' Revolving Credit Commitments and (y) the conditions set forth in Section 5.02 are satisfied at such timeCommitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Company Borrower shall within one (1) Business Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of the Issuing Bank only the Borrower's obligations corresponding to such Defaulting Lender’s 's LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(i2.04(j) for so long as such LC Exposure is outstanding;
(iii) if the Company Borrower cash collateralizes any portion of such Defaulting Lender’s 's LC Exposure pursuant to this Section 2.18(c2.20(c), the Company Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.10(b) 2.11 with respect to such Defaulting Lender’s 's LC Exposure during the period such Defaulting Lender’s 's LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.18(c2.20(c), then the fees payable to the Lenders pursuant to Sections 2.10(a) and 2.10(b) Section 2.11 shall be adjusted in accordance with such non-Defaulting Lenders’ ' Applicable Percentages; orand
(v) if all or any portion of such Defaulting Lender’s 's LC Exposure is neither cash collateralized nor reallocated pursuant to this Section 2.18(c2.20(c), then, without prejudice to any rights or remedies of any the Issuing Lender Bank or any Lender hereunder, all commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment 's Commitments that was were utilized by such LC Exposure) Exposure and any applicable letter of credit fees payable under Section 2.10(bfees) with respect to such Defaulting Lender’s 's LC Exposure shall be payable to the applicable Issuing Lender(s) Bank until and to the extent that such LC Exposure is cash collateralized and/or reallocated;; and
(d) so long as any Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Lenders Bank shall not be required to issue, extend, amend or increase any Letter of Credit, unless the applicable Issuing Lender it is satisfied that the related exposure and each Defaulting Lender's then outstanding LC Exposure will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers Borrower in accordance with this Section 2.18(c2.20(c), and participating interests in any such newly issued, extended issued or increased Letter of Credit or newly made Swingline Loan shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.18(c)(i2.20(c)(i) (and Defaulting Lenders shall not participate therein); and
(e) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.16(d) but excluding Section 2.17(b)) shall, in lieu of being distributed to such Defaulting Lender, 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 . If (i) first, a Bankruptcy Event with respect to any Lender Parent shall occur following the payment of any amounts owing by date hereof and for so long as such Defaulting Lender to the Administrative Agent hereunder, event shall continue or (ii) secondthe Swingline Lender or the Issuing Bank has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, pro ratathe Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Bank shall not be required to issue, to the payment of any amounts owing by such Defaulting Lender to any Issuing Lender, (iii) third, if so determined by the Administrative Agent amend or requested by an Issuing Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in increase any Letter of Credit, (iv) fourthunless the Swingline Lender or the Issuing Bank, as the case may be, shall have entered into arrangements with the Borrower or such Lender, satisfactory to the Swingline Lender or the Issuing Bank, as the case may be, to the funding of defease any Loan risk to it in respect of which such Defaulting Lender 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 Borrower Representative, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders or an Issuing Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender or such Issuing Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, (vii) seventh, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, and (viii) eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is (x) a prepayment of the principal amount of any Loans or reimbursement obligations in respect of LC Disbursements for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 3.02 are satisfied, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Lenderhereunder. In the event that the Administrative Agent, the Company Borrower, the Issuing Bank and the Issuing Lenders agree Swingline Lender each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Defaulting Lender’s 's Revolving Credit Commitment and on such date such Defaulting Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Defaulting Lender to hold such Loans in accordance with its Applicable Percentage.. ARTICLE V
Appears in 1 contract
Defaulting Lender. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion of the Revolving Credit Commitment of such Defaulting Lender pursuant to Section 2.10(a);
(b) the Revolving Credit Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, all affected Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.02, other than pursuant to Section 10.02(b)(i), 10.02(b)(ii) or 10.02(b)(iii) that directly affects such Lender), provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lender;
(c) if any LC Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of such LC Exposure shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s LC Exposure does not exceed the total of all non-Defaulting Lenders’ Revolving Credit Commitments and (y) the conditions set forth in Section 5.02 are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Company shall within one Business Day following notice by the Administrative Agent cash collateralize such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(i) for so long as such LC Exposure is outstanding;
(iii) if the Company cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to this Section 2.18(c2.20(c), the Company shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.10(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.18(c2.20(c), then the fees payable to the Lenders pursuant to Sections 2.10(a) and 2.10(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; or
(v) if any Defaulting Lender’s LC Exposure is neither cash collateralized nor reallocated pursuant to this Section 2.18(c2.20(c), then, without prejudice to any rights or remedies of any Issuing Lender or any Lender hereunder, all commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.10(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Lender(s) until such LC Exposure is cash collateralized and/or reallocated;
(d) so long as any Lender is a Defaulting Lender, the Issuing Lenders shall not be required to issue, extend, amend or increase any Letter of Credit, unless the applicable Issuing Lender is satisfied that the related exposure will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers in accordance with this Section 2.18(c2.20(d), and participating interests in any such newly issued, extended or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.18(c)(i2.20(c)(i) (and Defaulting Lenders shall not participate therein); and
(e) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.16(d2.17(d) but excluding Section 2.17(b2.18(b)) shall, in lieu of being distributed to such Defaulting Lender, 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 Lender to the Administrative Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to any Issuing Lender, (iii) third, if so determined by the Administrative Agent or requested by an Issuing Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in any Letter of Credit, (iv) fourth, to the funding of any Loan in respect of which such Defaulting Lender 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 Borrower RepresentativeBorrower, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders or an Issuing Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender or such Issuing Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, (vii) seventh, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, and (viii) eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is (x) a prepayment of the principal amount of any Loans or reimbursement obligations in respect of LC Disbursements for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 3.02 are satisfied, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Lender. In the event that the Administrative Agent, the Company and the Issuing Lenders agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Defaulting Lender’s Revolving Credit Commitment and on such date such Defaulting Lender shall purchase at par such of the Loans of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Defaulting Lender to hold such Loans in accordance with its Applicable Percentage.
Appears in 1 contract
Defaulting Lender. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion of the Revolving Credit any Commitment of such Defaulting Lender pursuant to Section 2.10(a)this Agreement;
(b) the Revolving Credit Commitment Commitments and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, all affected Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 10.029.02); provided, that in the case of an amendment, waiver or other than pursuant to Section 10.02(b)(i), 10.02(b)(ii) or 10.02(b)(iii) that directly affects such Lender), provided that any waiver, amendment or modification requiring the consent of all Lenders or of each Lender affected Lender which affects thereby, the Defaulting Lender’s consent shall be only be required with respect to (i) a proposed increase or extension of such Defaulting Lender differently than other affected Lenders shall require Lender’s Commitments and (ii) a proposed reduction or excuse, or a proposed postponement of the consent scheduled date of payment, of the principal amount of, or interest or fees payable on, any Loans or LC Disbursements as to any such Defaulting Lender;
(c) if any LC Exposure exists at the time such a Lender becomes a Defaulting Lender then:
(i) all or any part of such the LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages but only (x) to the extent (x) the sum of all that such reallocation does not, as to any non-Defaulting Lenders’ Revolving Credit Exposures plus Lender, cause such non-Defaulting Lender’s LC Revolving Exposure does not to exceed the total of all non-Defaulting Lenders’ Revolving Credit Commitments its Commitment and (y) if the conditions set forth in Section 5.02 4.02 are satisfied at such that time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Company Borrower shall within one (1) Business Day following notice by the Administrative Agent Agent, cash collateralize for the benefit of the Issuing Bank only the Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(i2.04(j) for so long as such LC Exposure is outstanding;
(iii) if the Company Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to this Section 2.18(c2.19(c), the Company Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.10(b) 2.11 with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.18(c2.19(c), then the fees payable to the Lenders pursuant to Sections 2.10(a) and 2.10(b) Section 2.11 shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; orand
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither cash collateralized nor reallocated pursuant to this Section 2.18(c2.19(c), then, without prejudice to any rights or remedies of any the Issuing Lender Bank or any Lender hereunder, all commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment Commitments that was were utilized by such LC Exposure) Exposure and any applicable letter of credit fees payable under Section 2.10(bfees) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Lender(s) Bank until and to the extent that such LC Exposure is cash collateralized and/or reallocated;; and
(d) so long as any Lender is a Defaulting Lender, the Issuing Lenders Bank shall not be required to issue, extend, amend or increase any Letter of Credit, unless the applicable Issuing Lender it is satisfied that the related exposure and each Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers Borrower in accordance with this Section 2.18(c2.19(c), and participating interests in LC Exposure related to any such newly issued, extended issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.18(c)(i2.19(c)(i) (and Defaulting Lenders shall not participate therein); and
(e) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.16(d) but excluding Section 2.17(b)) shall, in lieu of being distributed to such Defaulting Lender, 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 . If (i) first, a Bankruptcy Event with respect to any Lender Parent shall occur following the payment of any amounts owing by date hereof and for so long as such Defaulting Lender to the Administrative Agent hereunder, event shall continue or (ii) secondthe Issuing Bank has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, pro ratathe Issuing Bank shall not be required to issue, to the payment of any amounts owing by such Defaulting Lender to any Issuing Lender, (iii) third, if so determined by the Administrative Agent amend or requested by an Issuing Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in increase any Letter of Credit, (iv) fourthunless the Issuing Bank shall have entered into arrangements with the Borrower or such Lender, satisfactory to the funding of Issuing Bank to defease any Loan risk to it in respect of which such Defaulting Lender 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 Borrower Representative, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders or an Issuing Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender or such Issuing Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, (vii) seventh, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, and (viii) eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is (x) a prepayment of the principal amount of any Loans or reimbursement obligations in respect of LC Disbursements for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 3.02 are satisfied, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Lenderhereunder. In the event that the Administrative Agent, the Company Borrower and the Issuing Lenders agree Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Defaulting Lender’s Revolving Credit Commitment and on such date such Defaulting Lender shall purchase at par such of the Loans of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Defaulting Lender to hold such Loans in accordance with its Applicable Percentage.
Appears in 1 contract
Defaulting Lender. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion of the Revolving Credit any Commitment of such Defaulting Lender pursuant to Section 2.10(a);this Agreement;
(b) the Revolving Credit Commitment Commitments and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, all affected Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 10.029.02); provided, that in the case of an amendment, waiver or other than pursuant to Section 10.02(b)(i), 10.02(b)(ii) or 10.02(b)(iii) that directly affects such Lender), provided that any waiver, amendment or modification requiring the consent of all Lenders or of each Lender affected Lender which affects thereby, the Defaulting Lender’s consent shall be only be required with respect to (i) a proposed increase or extension of such Defaulting Lender differently than other affected Lenders shall require Lender’s Commitments and (ii) a proposed reduction or excuse, or a proposed postponement of the consent scheduled date of payment, of the principal amount of, or interest or fees payable on, any Loans or LC Disbursements as to any such Defaulting Lender;
(c) if any LC Exposure exists at the time such a Lender becomes a Defaulting Lender then:
(i) all or any part of such the LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages but only (x) to the extent (x) the sum of all that such reallocation does not, as to any non-Defaulting Lenders’ Revolving Credit Exposures plus Lender, cause such non-Defaulting Lender’s LC Tranche A Revolving Exposure does not to exceed the total of all non-Defaulting Lenders’ Revolving Credit Commitments its Tranche A Commitment and (y) if the conditions set forth in Section 5.02 4.03 are satisfied at such that time;;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Company Borrower shall within one (1) Business Day following notice by the Administrative Agent Agent, cash collateralize for the benefit of the Issuing Bank only the Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(i2.04(j) for so long as such LC Exposure is outstanding;; 65
(iii) if the Company Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to this Section 2.18(c2.20(c), the Company Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.10(b) 2.11 with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.18(c2.20(c), then the fees payable to the Lenders pursuant to Sections 2.10(a) and 2.10(b) Section 2.11 shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; orand
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither cash collateralized nor reallocated pursuant to this Section 2.18(c2.20(c), then, without prejudice to any rights or remedies of any the Issuing Lender Bank or any Lender hereunder, all commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment Tranche A Commitments that was were utilized by such LC Exposure) Exposure and any applicable letter of credit fees payable under Section 2.10(bfees) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Lender(s) Bank until and to the extent that such LC Exposure is cash collateralized and/or reallocated;; and
(d) so long as any Lender is a Defaulting Lender, the Issuing Lenders Bank shall not be required to issue, extend, amend or increase any Letter of Credit, unless the applicable Issuing Lender it is satisfied that the related exposure and each Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Revolving Credit Tranche A Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers Borrower in accordance with this Section 2.18(c2.20(c), and participating interests in LC Exposure related to any such newly issued, extended issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.18(c)(i2.20(c)(i) (and Defaulting Lenders shall not participate therein); and
(e) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.16(d) but excluding Section 2.17(b)) shall, in lieu of being distributed to such Defaulting Lender, 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 . If (i) first, a Bankruptcy Event with respect to any Lender Parent shall occur following the payment of any amounts owing by date hereof and for so long as such Defaulting Lender to the Administrative Agent hereunder, event shall continue or (ii) secondthe Issuing Bank has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, pro ratathe Issuing Bank shall not be required to issue, to the payment of any amounts owing by such Defaulting Lender to any Issuing Lender, (iii) third, if so determined by the Administrative Agent amend or requested by an Issuing Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in increase any Letter of Credit, (iv) fourthunless the Issuing Bank shall have entered into arrangements with the Borrower or such Lender, satisfactory to the funding of Issuing Bank to defease any Loan risk to it in respect of which such Defaulting Lender 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 Borrower Representative, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders or an Issuing Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender or such Issuing Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, (vii) seventh, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, and (viii) eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is (x) a prepayment of the principal amount of any Loans or reimbursement obligations in respect of LC Disbursements for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 3.02 are satisfied, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Lender. In the event that the Administrative Agent, the Company and the Issuing Lenders agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Defaulting Lender’s Revolving Credit Commitment and on such date such Defaulting Lender shall purchase at par such of the Loans of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Defaulting Lender to hold such Loans in accordance with its Applicable Percentage▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇.
Appears in 1 contract
Sources: Amended and Restated Credit Agreement (Solaris Oilfield Infrastructure, Inc.)
Defaulting Lender. (a) Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(ai) commitment the standby fees payable pursuant to Section 2.9 shall cease to accrue on the unfunded unused portion of the Revolving Credit Commitment of such Defaulting Lender pursuant to Section 2.10(a)Lender;
(bii) a Defaulting Lender shall not be included in determining whether, and the Revolving Credit Commitment and Revolving Credit Exposure the rateable share of the Accommodations Outstanding of such Defaulting Lender shall not be included in determining whether all Lenderswhether, all affected Lenders or the Required Majority Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.02, other than pursuant to Section 10.02(b)(i12.1(b), 10.02(b)(ii) or 10.02(b)(iii) that directly affects such Lender), provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which that (A) materially and adversely affects such Defaulting Lender differently than other affected Lenders Lenders, (B) increases the Commitment or extends the 5 Year Maturity Date or 2 Year Maturity Date of such Defaulting Lender, or (C) relates to the matters set forth in Sections 12.1(b)(ii), (iii), (v) (insofar as it relates to Section 12.1(b)) and (vii), shall require the consent of such Defaulting Lender;; and
(iii) for the avoidance of doubt, the Borrowers shall retain and reserve its other rights and remedies respecting each Defaulting Lender.
(b) If the Administrative Agent has actual knowledge that a Lender is a Defaulting Lender at the time that the Administrative Agent receives an Accommodation Notice, then each other Lender under the applicable Credit Facility shall fund its rateable share of such affected Accommodation (and, in calculating such rateable share, the Administrative Agent shall ignore the Commitments of each such Defaulting Lender under the applicable Credit Facility); provided that, for certainty, no Lender shall be obligated by this Section 12.9(b) to make or provide Accommodations in excess of its Commitment under the applicable Credit Facility. If the Administrative Agent acquires actual knowledge that a Lender is a Defaulting Lender at any time after the Administrative Agent receives, then the Administrative Agent shall promptly notify the Borrowers that such Lender is a Defaulting Lender (and such Lender shall be deemed to have consented to such disclosure). Each Defaulting ▇▇▇▇▇▇ agrees to indemnify each other Lender for any amounts paid by such Lender under this Section 12.9(b) and which would otherwise have been paid by the Defaulting Lender if its Commitment had been included in determining the rateable share of such affected Accommodations.
(c) if Any 5 Year Fronting Documentary Credit Lender or any LC Exposure exists 5 Year Swingline Lender may require a Defaulting Lender to pay to the Administrative Agent for deposit into an escrow account maintained by and in the name of the Administrative Agent an amount equal to such Defaulting Lenders’ maximum contingent obligations hereunder to such 5 Year Fronting Documentary Credit Lender or such 5 Year Swingline Lender.
(d) If any Fronted Documentary Credits or Swingline Advances are outstanding (the Equivalent U.S. $ Amount of the undrawn amount of such Fronted Documentary Credits or Swingline Advances is the “Defaulting Lender Exposure”) at the time such a Lender becomes a Defaulting Lender Lender, then:
(i) all or any part of to the extent the Defaulting Lender has not provided cash collateral for its Defaulting Lender Exposure pursuant to Section 12.9(c) above, such LC Defaulting Lender Exposure shall be reallocated among the non-Defaulting Lenders under the 5 Year Facility in accordance with their respective Applicable Percentages rateable share (disregarding any Defaulting Lender’s Commitment under the 5 Year Facility) but only to the extent (x) that the sum of all (A) the aggregate Equivalent U.S. $ Amount of the Accommodations Outstanding under the 5 Year Facility made by any non-Defaulting Lenders’ Revolving Credit Exposures Lender and outstanding at such time, plus (B) such non-Defaulting Lender’s LC Exposure rateable share (after giving effect to the reallocation contemplated herein) of the Defaulting Lender Exposure, does not exceed the total of all such non-Defaulting Lenders’ Revolving Credit Commitments and (y) Lender’s Commitment under the conditions set forth in Section 5.02 are satisfied at such time;5 Year Facility; and
(ii) if the reallocation described in clause (iSection 12.9(d)(i) above cannot, or can only partially, be effected, the Company Borrowers shall within one Business Day following notice by the Administrative Agent 5 Year Swingline Lenders or 5 Year Fronting Documentary Credit Lenders prepay amounts outstanding as Swingline Advances and under Fronted Documentary Credits to the extent any such reallocation cannot be effected (in the case of Fronted Documentary Credits by the deposit of cash collateralize such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(i) for so long as such LC Exposure is outstanding;
(iii) if the Company cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to this Section 2.18(c5.11(a), the Company provisions of which Section shall not be required to pay any fees to such Defaulting apply thereto as if a demand has been made pursuant thereto by each 5 Year Fronting Documentary Credit Lender pursuant to Section 2.10(b) with in respect to such Defaulting Lender’s LC Exposure during of the period such Defaulting Lender’s LC Exposure is cash collateralized;applicable amount of each outstanding Fronted Documentary Credits).
(ive) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.18(c), then the fees payable to the Lenders pursuant to Sections 2.10(a) and 2.10(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; or
(v) if any Defaulting Lender’s LC Exposure is neither cash collateralized nor reallocated pursuant to this Section 2.18(c), then, without prejudice to any rights or remedies of any Issuing Lender or any Lender hereunder, all commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.10(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Lender(s) until such LC Exposure is cash collateralized and/or reallocated;
(d) so So long as any Lender is a Defaulting Lender under the 5 Year Facility, a 5 Year Fronting Documentary Credit Lender or a 5 Year Swingline Lender, the Issuing Lenders as applicable, shall not be required to issueissue any Fronted Documentary Credits or make any Swingline Advances unless, extendin each case, amend or increase any Letter of Credit, unless the applicable Issuing Lender it is satisfied that the related exposure will be 100% covered by the Revolving Credit Commitments Commitment of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers in accordance with this Section 2.18(c), 12.9(d) and participating interests in any such newly issued, extended issued Fronted Documentary Credits or increased Letter of Credit Swingline Advances shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.18(c)(i) (and Defaulting Lenders shall not participate therein12.9(d); and.
(ef) If any amount payable Lender shall cease to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.16(d) but excluding Section 2.17(b)) shall, in lieu of being distributed to such a Defaulting Lender, be retained by then, upon becoming aware of the same, the Administrative Agent shall notify the other Lenders and (in a segregated account and, subject to any applicable requirements accordance with the written direction 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 Lender to the Administrative Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to any Issuing Lender, (iii) third, if so determined by the Administrative Agent or requested by an Issuing Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in any Letter of Credit, (iv) fourth, to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent) such Lender (which has ceased to be a Defaulting Lender) shall purchase, (v) fifth, if so determined by the Administrative Agent and the Borrower Representativeother Lenders shall on a rateable basis sell and assign to such Lender, held in such account as cash collateral for future funding obligations portions of the Accommodations Outstanding equal in total to such Lender’s rateable share thereof without regard to Section 12.9(a).
(g) Each Defaulting Lender of indemnifies the Borrowers for any Loans under this Agreementlosses, claims, costs, damages or liabilities (viincluding reasonable out-of-pocket expenses and reasonable legal fees on a solicitor and his own client basis) sixth, to the payment of any amounts owing to the Lenders or an Issuing Lender as a result of any judgment of a court of competent jurisdiction obtained incurred by any Lender or such Issuing Lender against such Defaulting Lender Borrower as a result of such Defaulting Lender’s breach Lender failing to comply with the terms of this Agreement including any failure to fund its obligations under this Agreement, (vii) seventh, to the payment portion of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, and (viii) eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is (x) a prepayment of the principal amount of any Loans or reimbursement obligations in respect of LC Disbursements for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 3.02 are satisfied, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Lender. In the event that the Administrative Agent, the Company and the Issuing Lenders agree that a Defaulting Lender has adequately remedied all matters that caused such Lender Advances required to be a Defaulting Lender, then the LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Defaulting Lender’s Revolving Credit Commitment and on such date such Defaulting Lender shall purchase at par such of the Loans of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Defaulting Lender to hold such Loans in accordance with its Applicable Percentagemade by it hereunder.
Appears in 1 contract
Sources: Revolving Credit Facility (Canadian Pacific Kansas City LTD/Cn)
Defaulting Lender. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) commitment unused fees shall cease to accrue on the unfunded portion of the Revolving Credit Commitment of such Defaulting Lender pursuant to Section 2.10(a)Lender;
(b) the Revolving Credit Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all the Required Lenders, all affected the Supermajority Lenders or the Required all Lenders have taken or may take any action hereunder (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 10.0212.01); except (i) such Defaulting Lender's Commitment may not be increased or extended without its consent and (ii) the principal amount of, other than pursuant or interest or fees payable on, Loans may not be reduced or excused or the scheduled date of payment may not be postponed as to Section 10.02(b)(i), 10.02(b)(ii) or 10.02(b)(iii) that directly affects such Lender), provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent of without such Defaulting Lender's consent;
(c) if any LC Swingline Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure of such LC Exposure Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ ' Revolving Credit Exposures plus such Defaulting Lender’s LC 's Swingline Exposure does not exceed the total of all non-Defaulting Lenders’ Revolving Credit Commitments and (y) the conditions set forth in Section 5.02 are satisfied at such time' Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Company Borrowers shall within one Business Day following notice by the Administrative Agent cash collateralize prepay such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(i) for so long as such LC Exposure is outstanding;
(iii) if the Company cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to this Section 2.18(c), the Company shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.10(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.18(c), then the fees payable to the Lenders pursuant to Sections 2.10(a) and 2.10(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; or
(v) if any Defaulting Lender’s LC Exposure is neither cash collateralized nor reallocated pursuant to this Section 2.18(c), then, without prejudice to any rights or remedies of any Issuing Lender or any Lender hereunder, all commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Swingline Exposure) and letter of credit fees payable under Section 2.10(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Lender(s) until such LC Exposure is cash collateralized and/or reallocated;
(d) so long as any such Lender is a Defaulting Lender, the Issuing Lenders Swingline Lender shall not be required to issue, extend, amend or increase fund any Letter of CreditSwingline Loan, unless the applicable Issuing Lender it is satisfied that the related exposure will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers in accordance with this Section 2.18(c4.08(b), and participating interests in any such newly issued, extended or increased Letter of Credit made Swingline Loan shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.18(c)(i4.08(b)(i) (and such Defaulting Lenders Lender shall not participate therein); and
(e) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.16(d) but excluding Section 2.17(b)) shall, in lieu of being distributed to such Defaulting Lender, 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 . If (i) first, a Bankruptcy Event with respect to the payment a Parent of any amounts owing by Lender shall occur following the date hereof and for so long as such Defaulting Lender to the Administrative Agent hereunder, event shall continue or (ii) secondSwingline Lender has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, pro rataSwingline Lender shall not be required to fund any Swingline Loan, unless Swingline Lender shall have entered into arrangements with Borrowers or such Lender, satisfactory to the payment of any amounts owing by such Defaulting Swingline Lender to defease any Issuing Lender, (iii) third, if so determined by the Administrative Agent or requested by an Issuing Lender, risk to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in any Letter of Credit, (iv) fourth, to the funding of any Loan it in respect of which such Defaulting Lender 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 Borrower Representative, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders or an Issuing Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender or such Issuing Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, (vii) seventh, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, and (viii) eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is (x) a prepayment of the principal amount of any Loans or reimbursement obligations in respect of LC Disbursements for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 3.02 are satisfied, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Lenderhereunder. In the event that the Administrative Agent, the Company Borrowers and the Issuing Lenders Swingline Lender agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the LC Swingline Exposure of the Lenders shall be readjusted to reflect the inclusion of such Defaulting Lender’s Revolving Credit 's Commitment and on such date such Defaulting Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Defaulting Lender to hold such Loans in accordance with its Applicable Percentage.
Appears in 1 contract
Sources: Revolving Credit Agreement (FelCor Lodging Trust Inc)
Defaulting Lender. (a) Notwithstanding any provision of this Agreement anything to the contrarycontrary contained herein, if in the event any Lender becomes is a Defaulting Lender, then all rights and obligations hereunder of such Defaulting Lender and of the following other parties hereto shall be modified to the extent of the express provisions shall apply for of this Section 2.22 so long as such Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion of the Revolving Credit Commitment of such Defaulting Lender pursuant to Section 2.10(a);.
(b) the Revolving Credit Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, all affected Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.02, other than pursuant to Section 10.02(b)(i), 10.02(b)(ii) or 10.02(b)(iii) that directly affects such Lender), provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lender;
(c) if except as otherwise expressly provided for in this Section 2.22, (x) Revolving Advances shall be made pro rata from Lenders holding Revolving Commitments which are not Defaulting Lenders based on their respective Revolving Commitment Percentages, and no Revolving Commitment Percentage of any LC Exposure exists at the time such Lender becomes or any pro rata share of any Revolving Advances required to be advanced by any Lender shall be increased as a result of any Lender being a Defaulting Lender then:
(i) all or any part of such LC Exposure shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s LC Exposure does not exceed the total of all non-Defaulting Lenders’ Revolving Credit Commitments and (y) the conditions set forth in Section 5.02 applicable Delayed Draw Term Loan shall be made pro rata from Lenders holding the Delayed Draw Term Loan Commitments which are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Company shall within one Business Day following notice by the Administrative Agent cash collateralize such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(i) for so long as such LC Exposure is outstanding;
(iii) if the Company cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to this Section 2.18(c), the Company shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.10(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.18(c)based on their respective Delayed Draw Term Loan Commitment Percentages, then the fees payable to the Lenders pursuant to Sections 2.10(a) and 2.10(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; or
(v) if any Defaulting Lender’s LC Exposure is neither cash collateralized nor reallocated pursuant to this Section 2.18(c), then, without prejudice to any rights or remedies no Delayed Draw Term Loan Commitment Percentage of any Issuing Lender or any pro rata share of any Delayed Draw Term Loan required to be advanced by any Lender hereunder, all commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.10(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Lender(s) until such LC Exposure is cash collateralized and/or reallocated;
(d) so long as any Lender is a Defaulting Lender, the Issuing Lenders shall not be required to issue, extend, amend or increase any Letter of Credit, unless the applicable Issuing Lender is satisfied that the related exposure will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers in accordance with this Section 2.18(c), and participating interests in any such newly issued, extended or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.18(c)(i) (and Defaulting Lenders shall not participate therein); and
(e) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.16(d) but excluding Section 2.17(b)) shall, in lieu of being distributed to such Defaulting Lender, 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 Lender to the Administrative Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to any Issuing Lender, (iii) third, if so determined by the Administrative Agent or requested by an Issuing Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in any Letter of Credit, (iv) fourth, to the funding of any Loan in respect of which such Defaulting Lender 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 Borrower Representative, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders or an Issuing Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender or such Issuing Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, (vii) seventh, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, and (viii) eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is (x) a prepayment of the principal amount of any Loans or reimbursement obligations in respect of LC Disbursements for which being a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 3.02 are satisfied, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Lender. In the event that the Administrative Agent, the Company and the Issuing Lenders agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Defaulting Lender’s Revolving Credit Commitment and on such date such Defaulting Lender shall purchase at par such of the Loans of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Defaulting Lender to hold such Loans in accordance with its Applicable Percentage.222233776
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Allegheny Technologies Inc)
Defaulting Lender. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion of the Revolving Credit Commitment of such Defaulting Lender pursuant to Section 2.10(a)2.5;
(b) the Revolving Credit Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, all affected Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.02, other than pursuant to Section 10.02(b)(i), 10.02(b)(ii) or 10.02(b)(iii) that directly affects such Lender13.11), provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lender;
(c) if any LC L/C Exposure exists at the time such a Lender becomes a Defaulting Lender then:
(i) all or any part of such LC L/C Exposure shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s LC Exposure does not exceed the total of all non-Defaulting Lenders’ Revolving Credit Commitments and (y) the conditions set forth in Section 5.02 4.3 are satisfied at such time;; and
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Company applicable Borrower and/or Parent shall within one Business Day following notice by the Administrative Agent Agent, cash collateralize such Defaulting Lender’s LC L/C Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(i2.3(j) for so long as such LC L/C Exposure is outstanding;
(iii) if the Company applicable Borrower and/or Parent cash collateralizes any portion of such Defaulting Lender’s LC L/C Exposure pursuant to this Section 2.18(c2.18(c)(ii), the Company Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.10(b2.3(g) with respect to such Defaulting Lender’s LC L/C Exposure during the period such Defaulting Lender’s LC L/C Exposure is cash collateralized;
(iv) if the LC L/C Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.18(c2.18(c)(i), then the fees payable to the Lenders pursuant to Sections 2.10(a) Section 2.5 and 2.10(bSection 2.3(g) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; or
(v) if any Defaulting Lender’s LC L/C Exposure is neither cash collateralized nor reallocated pursuant to this Section 2.18(c2.18(c)(i), then, without prejudice to any rights or remedies of any the Issuing Lender Bank or any Lender hereunder, all commitment fees Commitment Fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC L/C Exposure) and letter Letter of credit Credit fees payable under Section 2.10(b2.3(g) with respect to such Defaulting Lender’s LC L/C Exposure shall be payable to the applicable Issuing Lender(s) Bank until such LC L/C Exposure is cash collateralized and/or reallocated;; and
(dvi) so long as any Lender is a Defaulting Lender, the Issuing Lenders Bank shall not be required to issue, extend, amend or increase any Letter of Credit, unless the applicable Issuing Lender it is satisfied that the related exposure will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers applicable Borrower and/or Parent in accordance with this Section 2.18(c), and participating interests in any such newly issued, extended issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.18(c)(i) (and Defaulting Lenders shall not participate therein); and.
(e) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.16(d) but excluding Section 2.17(b)) shall, in lieu of being distributed to such Defaulting Lender, 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 Lender to the Administrative Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to any Issuing Lender, (iii) third, if so determined by the Administrative Agent or requested by an Issuing Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in any Letter of Credit, (iv) fourth, to the funding of any Loan in respect of which such Defaulting Lender 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 Borrower Representative, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders or an Issuing Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender or such Issuing Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, (vii) seventh, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, and (viii) eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is (x) a prepayment of the principal amount of any Loans or reimbursement obligations in respect of LC Disbursements for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 3.02 are satisfied, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Lender. In the event that the Administrative Agent, the Company Parent and the Issuing Lenders agree Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the LC L/C Exposure of the Lenders shall be readjusted to reflect the inclusion of such Defaulting Lender’s Revolving Credit Commitment and on such date such Defaulting Lender shall purchase at par such of the Loans of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Defaulting Lender to hold such Loans in accordance with its Applicable Percentage.
(d) for purposes of Section 2.1(b), a Defaulting Lender’s Percentage of a requested Loan or Letter of Credit shall not be included when determining whether such requested Loan or Letter of Credit would cause the Borrowing Base or the Total Commitment to be exceeded.
(e) for purposes of Section 4.2(i), the Commitments of each of the Lenders to fund their Percentage of the aggregate Completion Reserve Amounts for all Qualifying Pictures at the time a Lender becomes a Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Credit Exposures does not exceed the total of all non-Defaulting Lenders’ Commitments and (y) the conditions set forth in Section 4.3 are satisfied at such time. If such reallocation cannot, or can only partially, be effected, the applicable Borrower and/or Parent shall within one Business Day following notice from the Administrative Agent, cash collateralize (or provide some other manner of credit support which is acceptable to the Administrative Agent) such Defaulting Lender’s Percentage of the aggregate Completion Reserve Amounts for all Qualifying Pictures at such time (after giving effect to any partial reallocation in accordance with the first sentence of this Section 2.18(e)).
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Sources: Credit, Security, Guaranty and Pledge Agreement (Lions Gate Entertainment Corp /Cn/)
Defaulting Lender. Notwithstanding If at any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion of the Revolving Credit Commitment of such Defaulting Lender pursuant to Section 2.10(a);
(b) the Revolving Credit Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, all affected Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.02, other than pursuant to Section 10.02(b)(i), 10.02(b)(ii) or 10.02(b)(iii) that directly affects such Lender), provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lender;
(c) if any LC Exposure exists at the time such Lender becomes a Defaulting Lender exists hereunder, then:
(i) all or any part , at the request of such LC Exposure shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Issuing Lender’s LC Exposure does not exceed the total of all non-Defaulting Lenders’ Revolving Credit Commitments and (y) the conditions set forth in Section 5.02 are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Company Borrower shall within one Business Day following notice by the deposit funds with Administrative Agent cash collateralize such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with into the procedures set forth in Section 2.04(i) for so long as such LC Exposure is outstanding;
(iii) if the Company cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to this Section 2.18(c), the Company shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.10(b) with respect Cash Collateral Account an amount equal to such Defaulting Lender’s LC Exposure 's pro rata share of the Letter of Credit Exposure. So long as (a) such Defaulting Lender's Commitment is terminated in accordance with Section 2.04(c) or such Defaulting Lender is replaced in accordance with Section 2.15, and (b) no Default or Event of Default exists, the Administrative Agent shall release to the Borrower, at the Borrower's written request, any amounts held in the Cash Collateral Account that are attributable to such Defaulting Lender's pro rata share of the Letter of Credit Exposure.
Section 4.5 The first sentence of Section 2.08(a) of the Credit Agreement is hereby deleted in its entirety and replaced with the following: The Borrower agrees to pay to the Administrative Agent for the account of each Lender having a Commitment a commitment fee at a per annum rate equal to the Commitment Fee Rate on the average daily Unused Commitment Amount of such Lender, from the date of this Agreement until the Commitment Termination Date; provided that no such commitment fee shall accrue on the Unused Commitment Amount of any Defaulting Lender during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.18(c), then the fees payable to the Lenders pursuant to Sections 2.10(a) and 2.10(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; or
(v) if any Defaulting Lender’s LC Exposure is neither cash collateralized nor reallocated pursuant to this Section 2.18(c), then, without prejudice to any rights or remedies of any Issuing Lender or any Lender hereunder, all commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.10(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Lender(s) until such LC Exposure is cash collateralized and/or reallocated;
(d) so long as any Lender is remains a Defaulting Lender, the Issuing Lenders shall not be required to issue, extend, amend or increase any Letter .
Section 4.6 The first sentence of Credit, unless the applicable Issuing Lender is satisfied that the related exposure will be 100% covered by the Revolving Credit Commitments Section 2.11 of the non-Defaulting Lenders and/or cash collateral will be provided Credit Agreement is hereby amended by the Borrowers in accordance with this Section 2.18(c), and participating interests in any such newly issued, extended or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.18(c)(i) inserting "(and Defaulting Lenders shall not participate therein); and
(e) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.16(d) but excluding Section 2.17(b)) shall, in lieu of being distributed to such Defaulting Lender, 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 Lender to the Administrative Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to any Issuing Lender, (iii) third, if so determined by the Administrative Agent or requested by an Issuing Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in any Letter of Credit, (iv) fourth, to the funding of any Loan in respect of which such Defaulting Lender 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 Borrower Representative, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders or an Issuing Lender other than as a result of any judgment a termination of a court of competent jurisdiction obtained by any Lender or such Issuing Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, (vii) seventh, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, and (viii) eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is (x) a prepayment of the principal amount of any Loans or reimbursement obligations in respect of LC Disbursements for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 3.02 are satisfied, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Lender. In the event that the Administrative Agent, the Company and the Issuing Lenders agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender's Commitment under Section 2.04(c))" immediately after the phrase "If any Lender shall, then the LC Exposure by exercising any right of setoff or counterclaim or otherwise"
Section 4.7 Article II of the Lenders shall be readjusted Credit Agreement is hereby amended by adding the following new Section 2.15 to reflect the inclusion of such Defaulting Lender’s Revolving Credit Commitment and on such date such Defaulting Lender shall purchase at par such of the Loans of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Defaulting Lender to hold such Loans in accordance with its Applicable Percentage.end thereof:
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Defaulting Lender. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion of the Revolving Credit Commitment of such Defaulting Lender pursuant to Section 2.10(a);
(b) the Revolving Credit Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, all affected Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.02, other than pursuant to Section 10.02(b)(i), 10.02(b)(ii) or 10.02(b)(iii) that directly affects such Lender), provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lender;
(c) if any Swingline Exposure or LC Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of such the Swingline Exposure or the LC Exposure of such Defaulting Lender (other than, in the case of a Defaulting Lender that is a Swingline Lender, the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the total of all non-Defaulting Lenders’ Revolving Credit Commitments and (y) the conditions set forth in Section 5.02 are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Company shall within one Business Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure, and (y) second, cash collateralize such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(i) for so long as such LC Exposure is outstanding;
(iii) if the Company cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to this Section 2.18(c2.20(c), the Company shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.10(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.18(c2.20(c), then the fees payable to the Lenders pursuant to Sections 2.10(a) and 2.10(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; or
(v) if any Defaulting Lender’s LC Exposure is neither cash collateralized nor reallocated pursuant to this Section 2.18(c2.20(c), then, without prejudice to any rights or remedies of any Issuing Lender or any Lender hereunder, all commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.10(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Lender(s) until such LC Exposure is cash collateralized and/or reallocated;
(d) so long as any Lender is a Defaulting Lender, no Swingline Lenders shall be required to fund any Swingline Loan and the Issuing Lenders shall not be required to issue, extend, amend or increase any Letter of Credit, unless the applicable Issuing Lender is satisfied that the related exposure will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers in accordance with this Section 2.18(c2.20(d), and participating interests in Swingline Exposure related to any newly made Swingline Loan or LC Exposure related to any such newly issued, extended or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.18(c)(i2.20(c)(i) (and Defaulting Lenders shall not participate therein); and
(e) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.16(d2.17(d) but excluding Section 2.17(b2.18(b)) shall, in lieu of being distributed to such Defaulting Lender, 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 Lender to the Administrative Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to any Issuing LenderLender or Swingline Lender hereunder, (iii) third, if so determined by the Administrative Agent or requested by an Issuing Lender▇▇▇▇▇▇▇ ▇▇▇▇▇▇, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in any Letter of Credit, (iv) fourth, to the funding of any Loan in respect of which such Defaulting Lender 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 Borrower RepresentativeBorrower, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders or Lenders, an Issuing Lender or a Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, such Issuing Lender or such Issuing Swingline Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, (vii) seventh, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, and (viii) eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is (x) a prepayment of the principal amount of any Loans or reimbursement obligations in respect of LC Disbursements for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 3.02 are satisfied, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Lender. In the event that the Administrative Agent, the Company Company, the Issuing Lenders and the Issuing Swingline Lenders agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Defaulting Lender’s Revolving Credit Commitment and on such date such Defaulting Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Defaulting Lender to hold such Loans in accordance with its Applicable Percentage.
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Defaulting Lender. Notwithstanding any provision of this Agreement to the contrary, if If any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) commitment fees such Defaulting Lender’s Revolving Commitment and outstanding Revolving Loans shall cease be excluded for purposes of calculating the fee payable to accrue on the unfunded Revolving Lenders in respect of Section 2.14(b), and such Defaulting Lender shall not be entitled to receive any fee pursuant to Section 2.14(b) with respect to such Defaulting Lender’s Revolving Commitment or Revolving Loans (in each case not including any fee in connection with any portion of the Revolving Credit Commitment of such Defaulting Lender Lenders Revolving Commitment that has been reallocated to non-Defaulting Lenders pursuant to Section 2.10(a12.15(d) hereof);.
(b) the Revolving Credit Commitment Commitments and Revolving Credit Exposure Loans of such Defaulting Lender shall not be included in determining whether all Lenders, all affected Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.02, other than pursuant to Section 10.02(b)(i11.4), 10.02(b)(ii) or 10.02(b)(iii) that directly affects such Lender), provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lender;.
(c) if any LC Exposure exists at in the time such Lender becomes event a Defaulting Lender then:
(i) all or has defaulted on its obligation to fund any part of such LC Exposure shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s LC Exposure does not exceed the total of all non-Defaulting Lenders’ Revolving Credit Commitments and (y) the conditions set forth in Section 5.02 are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannotLoan, or can only partially, be effected, the Company shall within one Business Day following notice by the Administrative Agent cash collateralize such Defaulting Lender’s LC Exposure (after giving effect to purchase any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(i) for so long as such LC Exposure is outstanding;
(iii) if the Company cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to this Section 2.18(c), the Company shall not be required to pay any fees to such Defaulting Lender participation pursuant to Section 2.10(b2.24(e) hereof, until such time as the Default Excess with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant Lender has been reduced to this Section 2.18(c)zero, then the fees payable to the Lenders pursuant to Sections 2.10(a) and 2.10(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; or
(v) if any Defaulting Lender’s LC Exposure is neither cash collateralized nor reallocated pursuant to this Section 2.18(c), then, without prejudice to any rights prepayments or remedies of any Issuing Lender or any Lender hereunder, all commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.10(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Lender(s) until such LC Exposure is cash collateralized and/or reallocated;
(d) so long as any Lender is a Defaulting Lender, the Issuing Lenders shall not be required to issue, extend, amend or increase any Letter of Credit, unless the applicable Issuing Lender is satisfied that the related exposure will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers in accordance with this Section 2.18(c), and participating interests in any such newly issued, extended or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.18(c)(i) (and Defaulting Lenders shall not participate therein); and
(e) any amount payable to such Defaulting Lender hereunder (whether repayments on account of principalthe Revolving Loans or participations purchased pursuant to Section 2.24(e), interest, fees or otherwise and including any amount that in each case to the extent they would be otherwise be payable to such Defaulting Lender pursuant to Section 2.16(d) but excluding Section 2.17(b)) shall, in lieu of being distributed to such Defaulting Lender, be retained by the Administrative Agent in a segregated account and, subject to any applicable requirements of law, shall 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 Lender to the Administrative Agent hereunder, (ii) ; second, pro rata, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any the Issuing Lender, (iii) Bank or Letter of Credit Guarantor hereunder; third, if so determined by to Cash Collateralize the Administrative Agent Issuing Bank’s (or requested by an Issuing Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in any Letter of CreditCredit Guarantor’s, as the case may be) Fronting Exposure with respect to such Defaulting Lender; fourth, as the Borrowers may request (iv) fourthso long as no Default or Event of Default exists), to the funding of any Loan in respect of which such Defaulting Lender 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 Borrower RepresentativeBorrowers, to be held in a deposit account and released pro rata in order to (x) satisfy such account as cash collateral for Defaulting Lender’s potential future funding obligations of the Defaulting Lender of any with respect to Loans under this Agreement and (y) Cash Collateralize the Issuing Bank’s (or the Letter of Credit Guarantor’s, as the case may be) future Fronting Exposure with respect to such Defaulting Lender with respect to future Letters of Credit issued under this Agreement, (vi) ; sixth, to the payment of any amounts owing to the Lenders Lenders, the Issuing Bank or an Issuing Lender the Letter of Credit Guarantor as a result of any judgment of a court of competent jurisdiction obtained by any Lender Lender, the Issuing Bank or such Issuing Lender the Letter of Credit Guarantor against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, (vii) seventhso long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, ; and (viii) eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that provided, that, if (x) such payment is (x) a prepayment payment of the principal amount of any Loans or reimbursement obligations Letter of Credit Liabilities in respect of LC Disbursements for which a such Defaulting Lender has not fully funded its participation obligations appropriate share and (y) such Loans or Letter of Credit Liabilities were made at a time when the conditions set forth in Section 3.02 are satisfied3.2 were satisfied or waived, such payment shall be applied solely to prepay pay the Loans of, and reimbursement obligations Letter of Credit Liabilities owed to, all non-Defaulting Lenders on a pro rata basis prior to being applied to the prepayment payment of any LoansLoans of, or reimbursement obligations Letter of Credit Liabilities owed to, such Defaulting Lender. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post Cash Collateral pursuant to this Section 12.15(c) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
(d) If any Letter of Credit Liabilities are outstanding at the time a Lender becomes a Defaulting Lender then:
(i) so long as no Default or Event of Default then exists, all or any part of such Letter of Credit Liabilities shall be reallocated among the non-Defaulting Revolving Lenders in accordance with their respective Pro Rata Shares of the total Revolving Commitments (calculated without regard to such Defaulting Lender’s Revolving Commitments), provided that no Revolving Lender’s Revolving Exposure shall exceed its Revolving Commitment;
(ii) if the reallocation described in paragraph (i) above cannot, or can only partially, be effected, the Borrowers shall within one (1) Business Day following notice by Administrative Agent, Cash Collateralize such Defaulting Lender’s Pro Rata Share of Letter of Credit Liabilities (after giving effect to any partial reallocation pursuant to paragraph (i) above) in accordance with the procedures set forth in Section 2.24(i) and for so long as any such Letter of Credit Obligations are outstanding;
(iii) if the Borrowers Cash Collateralize any portion of such Defaulting Lender’s Pro Rata Share of Letter of Credit Obligations pursuant to this Section 12.15(d), the Borrowers shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.14(c) with respect to the portion of such Defaulting Lender’s Pro Rata Share of Letter of Credit Obligations which have been Cash Collateralized (and the Defaulting Lender shall not be entitled to receive any such fees);
(iv) if the Defaulting Lender’s Pro Rata Share of Letter of Credit Obligations are reallocated pursuant to this Section 12.15(d), then the letter of credit fees payable to the non- Defaulting Lenders pursuant to Section 2.14(c) shall be adjusted accordingly; and
(v) if any Defaulting Lender. ’s Pro Rata Share of Letter of Credit Liabilities is not Cash Collateralized or reallocated pursuant to this Section 12.15(d), then without prejudice to any rights or remedies of the applicable Letter of Credit Guarantor or Issuing Bank hereunder, all letter of credit fees payable under Section 2.14(c) with respect to such Defaulting Lender’s Pro Rata Share of Letter of Credit Liabilities shall be payable to the Issuing Bank or if applicable, the Letter of Credit Guarantor.
(e) So long as any Lender is a Defaulting Lender, no Issuing Bank or Letter of Credit Guarantor shall be required to issue, extend or increase any Letter of Credit or Letter of Credit Guaranty, in each case unless it is reasonably satisfied that the related exposure will be 100% covered by the Revolving Commitments of the non-Defaulting Lenders and/or Cash Collateral will be provided by the Borrowers in accordance with Section 2.24(i), and participating interests in any such newly issued, extended or increased Letter of Credit or Letter of Credit Guaranty shall be allocated among non- Defaulting Lenders in a manner consistent with Section 12.15(d)(i) (and Defaulting Lenders shall not participate therein).
(f) No reallocation permitted pursuant to Section 12.15(d) shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Lender having become a Defaulting Lender, including any claim of a non-Defaulting Lender as a result of such non-Defaulting Lender’s increased exposure following such reallocation.
(g) In the event that the Administrative Agent, the Company Issuing Bank and the Issuing Lenders agree Letter of Credit Guarantor each agrees in writing that a Defaulting Lender has adequately remedied all matters that which caused such Lender to be become a Defaulting Lender, then the LC Exposure Pro Rata Shares of the Letter of Credit Obligations of the Revolving Lenders shall be readjusted to reflect the inclusion of such Defaulting Lender’s Revolving Credit Commitment and on such date such Defaulting Lender shall purchase at par such of the Revolving Loans of the other Lenders or participations in the Revolving Loans as the Administrative Agent shall determine may be necessary in order for such Defaulting Lender to hold such Revolving Loans or participations in accordance with its Applicable PercentagePro Rata Share; provided, that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers while that Lender was a Defaulting Lender; provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender having been a Defaulting Lender.
(h) The rights and remedies with respect to a Defaulting Lender under this Section 12.15 are in addition to any other rights and remedies which the Borrowers, Administrative Agent, the Issuing Bank or the Letter of Credit Guarantor, as applicable, may have against such Defaulting Lender.
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Defaulting Lender. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) commitment fees Fees shall cease to accrue on the unfunded portion of the Revolving Credit Commitment of such Defaulting Lender pursuant to Section 2.10(a);Lender.
(b) The Commitment amounts outstanding on the Revolving Credit Commitment and Revolving Credit Exposure Loans of such Defaulting Lender shall not be included in determining whether all Lenders, all affected Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.02, other than pursuant to Section 10.02(b)(i9.12), 10.02(b)(ii) or 10.02(b)(iii) that directly affects such Lender), ; provided that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of any waiver, amendment or modification (i) requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require (ii) described in clause (i) or (ii) of the consent of such Defaulting Lender;first proviso in Section 9.12.
(c) if If any LC Swing Line Exposure or L/C Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of the Swing Line Exposure and L/C Exposure of such LC Exposure Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages Pro Rata Shares (calculated without regard to such Defaulting Lender’s Commitment) but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Extensions of Credit Exposures plus such Defaulting Lender’s LC Swing Line Exposure and L/C Exposure does not exceed the total of all non-Defaulting Lenders’ Revolving Credit Commitments and (y) the conditions set forth in Commitment. Subject to Section 5.02 are satisfied at 16.1, no reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Lender having become a Defaulting Lender, including any claim of a non-Defaulting Lender as a result of such timenon-Defaulting Lender’s increased exposure following such reallocation;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Company Borrower shall within one Business Day following notice by the Administrative Agent (x) first, prepay such Swing Line Exposure and (y) second, cash collateralize for the benefit of the Issuing Lender only the Borrower’s obligations corresponding to such Defaulting Lender’s LC L/C Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(i) 8.1 for so long as such LC L/C Exposure is outstanding;
(iii) if the Company Borrower cash collateralizes any portion of such Defaulting Lender’s LC L/C Exposure pursuant to this Section 2.18(c)clause (ii) above, the Company Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.10(b) with respect to such Defaulting Lender’s LC L/C Exposure during the period such Defaulting Lender’s LC L/C Exposure is cash collateralized;
(iv) if the LC L/C Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.18(c)clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.10(a) and 2.10(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable PercentagesPro Rata Shares; orand
(v) if all or any portion of such Defaulting Lender’s LC L/C Exposure is neither reallocated nor cash collateralized nor reallocated pursuant to this Section 2.18(c)clause (i) or (ii) above, then, without prejudice to any rights or remedies of any the Issuing Lender or any other Lender hereunder, all commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.10(b3.3(a) with respect to such Defaulting Lender’s LC L/C Exposure shall be payable to the applicable Issuing Lender(s) Lender until and to the extent that such LC L/C Exposure is reallocated and/or cash collateralized and/or reallocated;collateralized.
(d) so So long as any Lender is a Defaulting Lender, the Swing Line Lender shall not be required to fund any Swing Line Loan and any Issuing Lenders Lender shall not be required to issue, extend, amend or increase any Letter of Credit, unless the applicable Issuing Lender it is satisfied that the related exposure will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers in accordance with this Section 2.18(c), and participating interests in any such newly issued, extended or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.18(c)(i) (and Defaulting Lenders shall not participate therein); andBorrower.
(e) any Any amount payable to such Defaulting Lender hereunder under this Agreement (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.16(d) but excluding Section 2.17(b)) this Agreement, shall, in lieu of being distributed to such Defaulting Lender, 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 Lender to the Administrative Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to the Swing Line Lender or any Issuing LenderLender hereunder, (iii) third, if so determined by to the Administrative Agent or requested by an Issuing Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender collateralization of any participating interest in any Swing Line Loan or Letter of CreditCredit (in which case any cash collateral posted by the Borrower pursuant to this Section 2.19 shall be released to the Borrower in an equal amount), (iv) fourth, as the Borrower may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which such Defaulting Lender 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 Borrower RepresentativeAgent, held in such account as cash collateral for and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) cash collateralization of the Issuing Lenders’ future L/C Exposure with respect to such Defaulting Lender with respect to future Letters of any Loans Credit issued under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders, the Issuing Lenders or an Issuing Swing Line Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender Lender, the Issuing Lenders or such Issuing Swing Line Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, (vii) seventh, so long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrowers Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, and (viii) eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is (x) a prepayment payment of the principal amount of any Loans or reimbursement obligations Letters of Credit in respect of LC Disbursements for which a such Defaulting Lender has not fully funded its participation obligations appropriate share, and (y) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 3.02 are satisfied4.2 were satisfied or waived, such payment shall be applied solely to prepay pay the Loans of, and reimbursement obligations participating interests in any Letter of Credit owed to, all non-Defaulting Lenders on a pro rata basis prior to being applied to the prepayment payment of any LoansLoans of, or reimbursement obligations participating interests in any Letter of Credit owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in any Letter of Credit and Swing Line Loans are held by the Lenders pro rata in accordance with the Commitments hereunder without giving effect to Section 2.19(c)(i). Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post as cash collateral pursuant to this Section 2.19(e) shall be deemed paid to and redirected by such Defaulting Lender. , and each Lender irrevocably consents hereto.
(f) In the event that the Administrative Agent, the Company Borrower, the Swing Line Lender and the Issuing Lenders agree Lender each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the LC Swing Line Exposure and L/C Exposure of the Lenders shall be readjusted to reflect the inclusion of such Defaulting Lender’s Revolving Credit Commitment Pro Rata Share and on such date such Defaulting Lender shall purchase at par such of the Loans of the other Lenders (other than Swing Line Loans) as the Administrative Agent shall determine may be necessary in order for such Defaulting Lender to hold such Loans in accordance with its Applicable PercentagePro Rata Share; 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 Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.
(g) The Borrower may, at its sole expense and effort, upon notice to such Lender and the Administrative Agent, require that the Defaulting Lender assign without recourse (in accordance with and subject to the restrictions set forth in Article XII of this Agreement in the case of voluntary assignments by a Lender) all of its interests, rights and obligations under this Agreement to an assignee that shall assume such obligations (which assignee may be another Lender); provided, that (i) such assignee shall have received the prior written approval of the Borrower and the Administrative Agent, which consent shall not be unreasonably withheld, and (ii) such Defaulting Lender shall have received payment of an amount equal to the outstanding principal amount of all Obligations owed to it, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (in the case of such outstanding principal and accrued interest) and from the Borrower (in the case of all other amounts).
(h) If (i) a Bankruptcy Event with respect to a Lender Parent of any Lender shall occur following the date hereof and for so long as such event shall continue or (ii) the Swing Line Lender or the Issuing Lender has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swing Line Lender shall not be required to fund any Swing Line Loan and the Issuing Lender shall not be required to issue, amend or increase any Letter of Credit, unless the Swing Line Lender or the Issuing Lender, as the case may be, shall have entered into arrangements with the Borrower or such Lender, satisfactory to the Swing Line Lender or the Issuing Lender, as the case may be, to defease any risk to it in respect of such Lender hereunder.
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Defaulting Lender. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion of the Revolving Credit any Commitment of such Defaulting Lender pursuant to Section 2.10(a)this Agreement;
(b) the Revolving Credit Commitment Commitments and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, all affected Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 10.029.02); provided, that in the case of an amendment, waiver or other than pursuant to Section 10.02(b)(i), 10.02(b)(ii) or 10.02(b)(iii) that directly affects such Lender), provided that any waiver, amendment or modification requiring the consent of all Lenders or of each Lender affected Lender which affects thereby, the Defaulting Lender’s consent shall be only be required with respect to (i) a proposed increase or extension of such Defaulting Lender differently than other affected Lenders shall require Lender’s Commitments and (ii) a proposed reduction or excuse, or a proposed postponement of the consent scheduled date of payment, of the principal amount of, or interest or fees payable on, any Loans or LC Disbursements as to any such Defaulting Lender;
(c) if any LC Exposure exists at the time such a Lender becomes a Defaulting Lender then:
(i) all or any part of such the LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages but only (x) to the extent (x) the sum of all that such reallocation does not, as to any non-Defaulting Lenders’ Revolving Credit Exposures plus Lender, cause such non-Defaulting Lender’s LC Revolving Exposure does not to exceed the total of all non-Defaulting Lenders’ Revolving Credit Commitments its Commitment and (y) if the conditions set forth in Section 5.02 4.02 are satisfied at such that time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Company Borrower shall within one (1) Business Day following notice by the Administrative Agent Agent, cash collateralize for the benefit of the Issuing Bank only the Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(i2.04(j) for so long as such LC Exposure is outstanding;
(iii) if the Company Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to this Section 2.18(c2.19(c), the Company Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.10(b) 2.11 with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.18(c2.19(c), then the fees payable to the Lenders pursuant to Sections 2.10(a) and 2.10(b) Section 2.11 shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; orand
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither cash collateralized nor reallocated pursuant to this Section 2.18(c2.19(c), then, without prejudice to any rights or remedies of any the Issuing Lender Bank or any Lender hereunder, all commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment Commitments that was were utilized by such LC Exposure) Exposure and any applicable letter of credit fees payable under Section 2.10(bfees) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Lender(s) Bank until and to the extent that such LC Exposure is cash collateralized and/or reallocated;; and
(d) so long as any Lender is a Defaulting Lender, the Issuing Lenders Bank shall not be required to issue, extend, amend or increase any Letter of Credit, unless the applicable Issuing Lender it is satisfied that the related exposure and each Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers Borrower in accordance with this Section 2.18(c2.19(c), and participating interests in LC Exposure related to any such newly issued, extended issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.18(c)(i2.19(c)(i) (and Defaulting Lenders shall not participate therein); and
(e) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.16(d) but excluding Section 2.17(b)) shall, in lieu of being distributed to such Defaulting Lender, 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 . If (i) first, a Bankruptcy Event with respect to any Lender Parent shall occur following the payment of any amounts owing by date hereof and for so long as such Defaulting Lender to the Administrative Agent hereunder, event shall continue or (ii) secondthe Issuing Bank has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, pro ratathe Issuing Bank shall not be required to issue, to the payment of any amounts owing by such Defaulting Lender to any Issuing Lender, (iii) third, if so determined by the Administrative Agent amend or requested by an Issuing Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in increase any Letter of Credit, (iv) fourthunless the Issuing Bank shall have entered into arrangements with the Borrower or such Lender, satisfactory to the funding of Issuing Bank to defease any Loan risk to it in respect of which such Defaulting Lender 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 Borrower Representative, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders or an Issuing Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender or such Issuing Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, (vii) seventh, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, and (viii) eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is (x) a prepayment of the principal amount of any Loans or reimbursement obligations in respect of LC Disbursements for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 3.02 are satisfied, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Lenderhereunder. In the event that the Administrative Agent, the Company Borrower and the Issuing Lenders agree Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Defaulting Lender▇▇▇▇▇▇’s Revolving Credit Commitment and on such date such Defaulting Lender shall purchase at par such of the Loans of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Defaulting Lender to hold such Loans in accordance with its Applicable Percentage.
Appears in 1 contract
Defaulting Lender. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion of the Revolving Credit Commitment of such Defaulting Lender pursuant to Section 2.10(a);
(b) the Revolving Credit Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, all affected Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.02, other than pursuant to Section 10.02(b)(i), 10.02(b)(ii) or 10.02(b)(iii) that directly affects such Lender), provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lender;
(c) if any LC Exposure exists Swingline Loans are outstanding or any Letter of Credit Outstandings exist at the time such when a Revolving Lender becomes a Defaulting Lender then:
(i) all or any part of the participating risk in such LC Exposure Swingline Loans and Letter of Credit Outstandings shall be reallocated among the nonRevolving Lenders that are Non-Defaulting Revolving Lenders in accordance with their respective Applicable Percentages RL Percentage but only to the extent (x) the sum of all nonRevolving Extensions of Credit of all Revolving Lenders that are Non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s LC Exposure Lenders does not exceed the total aggregate amount of all nonRevolving Loan Commitments of all Non-Defaulting Revolving Lenders’ , (y) immediately following the reallocation to a Revolving Lender that is a Non-Defaulting Lender, the Revolving Extensions of Credit Commitments of such Revolving Lender do not exceed its Revolving Loan Commitment at such time and (yz) the conditions set forth in Section 5.02 7.2 are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Company Borrower shall within one (1) Business Day following notice by the Administrative Agent cash collateralize (x) first, prepay such outstanding Swingline Loans and (y) second, Collateralize in a manner reasonably satisfactory to the applicable Issuing Lender such Defaulting Lender’s LC Exposure RL Percentage of all Letter of Credit Outstandings (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(i) for so long as such LC Exposure is outstandingLetter of Credit Outstandings exist;
(iii) if the Company cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to this Section 2.18(c), the Company Borrower shall not be required to pay any fees Letter of Credit Fees to such Defaulting Lender pursuant to Section 2.10(b4.1(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralizedRL Percentage of Letter of Credit Outstandings;
(iv) if the LC Exposure participating risk in Letter of Credit Outstandings of the nonNon-Defaulting Lenders is reallocated pursuant to this Section 2.18(c2.17(a), then the fees Letter of Credit Fees payable to the Revolving Lenders pursuant to Sections 2.10(a) and 2.10(bSection 4.1(b) shall be adjusted in accordance with such nonNon-Defaulting Lenders’ Applicable RL Percentages; orand
(v) if any Defaulting Lender’s LC Exposure Lenders’ RL Percentage of Letter of Credit Outstandings is neither cash collateralized Collateralized nor reallocated pursuant to this Section 2.18(c2.17(a), then, without prejudice to any rights or remedies of any Issuing Lender or any Revolving Lender hereunder, all commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion Letter of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees Credit Fees payable under Section 2.10(b4.1(b) with respect to such Defaulting Lender’s LC Exposure RL Percentage of Letter of Credit Outstandings shall be payable to the applicable each Issuing Lender(s) Lender until such LC Exposure portion of such Letter of Credit Outstandings is cash collateralized Collateralized and/or reallocated;.
(db) Notwithstanding anything to the contrary contained in Section 2.1(d) or Section 3, so long as any Revolving Lender is a Defaulting Lender, Lender (i) the Issuing Lenders Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Lender shall be required to issue, extend, amend or increase any Letter of Credit, unless the applicable Issuing Lender it is satisfied that the related exposure will be 100% covered by the Revolving Credit Loan Commitments of the nonNon-Defaulting Lenders and/or cash collateral will be has been provided by the Borrowers Borrower in accordance with this Section 2.18(c2.17(a), and (ii) participating interests in any such newly issued, extended issued or increased Letter of Credit or newly made Swingline Loan shall be allocated among nonRevolving Lenders that are Non-Defaulting Lenders in a manner consistent with Section 2.18(c)(i2.17(a) (and Defaulting Lenders shall not participate therein); and.
(ec) any amount payable to such In the event that the Administrative Agent, the Borrower, each Issuing Lender and the Swingline Lender each agrees that a Defaulting Lender hereunder has adequately remedied all matters that caused such Revolving Lender to be a Defaulting Lender, then (whether i) the risk participations in Swingline Loans and Letter of Credit Outstandings of the Revolving Lenders shall be readjusted to reflect the inclusion of such Revolving Lender’s Revolving Loan Commitments and on account such date such Revolving Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Revolving Lender to hold such Revolving Loans in accordance with its RL Percentage and (ii) so long as no Event of Default then exists, all funds held as Cash Collateral pursuant to the Letter of Credit Back-Stop Arrangements shall thereafter be promptly returned to the Borrower. If the Revolving Loan Commitments have been terminated, all other Obligations have been paid in full and no Letters of Credit are outstanding, then, so long as no Event of Default then exists, all funds held as Cash Collateral pursuant to the Letter of Credit Back-Stop Arrangements and the Swingline Back-Stop Arrangements shall thereafter be promptly returned to the Borrower.
(d) Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as such Lender is no longer a Defaulting Lender, to the extent permitted by applicable law:
(i) Any payment of principal, interest, fees or otherwise and including any amount that would otherwise be payable other amounts received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to such Section 11 or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 2.16(d) but excluding Section 2.17(b)) shall, in lieu of being distributed to such Defaulting Lender, be retained by the Administrative Agent in a segregated account and, subject to any applicable requirements of law, 13.2 shall be applied at such time or times as may be determined by the Administrative Agent (i) as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder, (ii) ; second, pro rata, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any each Issuing Lender or the Swingline Lender hereunder; third, to Cash Collateralize each Issuing Lender, (iii) third, if so determined by the Administrative Agent or requested by an Issuing Lender, ’s Fronting Exposure with respect to be held in such account as cash collateral for future funding obligations of the Defaulting Lender in accordance with Section 2.17(a)(ii); fourth, as the Borrower may request (so long as no Default or Event of any participating interest in any Letter of Credit, (iv) fourthDefault exists), to the funding of any Loan in respect of which such Defaulting Lender 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 Borrower RepresentativeBorrower, to be held in a deposit account and released pro rata in order to (x) satisfy such account as cash collateral for Defaulting Lender’s potential future funding obligations of the with respect to Loans under this Agreement and (y) Cash Collateralize each Issuing Lender’s future Fronting Exposure with respect to such Defaulting Lender with respect to future Letters of any Loans Credit issued under this Agreement, (vi) in accordance with Section 2.17(a)(ii); sixth, to the payment of any amounts owing to the Lenders Lenders, each Issuing Lender or an Issuing the Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, Issuing Lender or such Issuing Swingline Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, (vii) seventhso long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrowers Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, ; and (viii) eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is (x) a prepayment payment of the principal amount of any Loans or reimbursement obligations with respect to Letters of Credit in respect of LC Disbursements for which a such Defaulting Lender has not fully funded its participation obligations appropriate share, and (y) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 3.02 are satisfied7.2 were satisfied and waived, such payment shall be applied solely to prepay pay the Loans of, and reimbursement obligations with respect to Letters of Credit owed to, all nonNon-Defaulting Lenders on a pro rata basis prior to being applied to the prepayment payment of any LoansLoans of, or reimbursement obligations with respect to Letters of Credit owed to, any such Defaulting LenderLender until such time as all Loans and funded and unfunded participations in Letters of Credit and Swingline Loans are held by the Lenders pro rata in accordance with the applicable Commitments without giving effect to Section 2.17(a)(i). In the event that the Administrative AgentAny payments, the Company and the Issuing Lenders agree that prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post Cash Collateral pursuant to this Section 2.17(d)(i) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
(ii) No Defaulting Lender shall be entitled to receive any fee pursuant to Section 4.1(a) or (b) for any period during which that Lender is a Defaulting Lender (and the Borrower shall not be required to pay any such fee that otherwise would have been required to have been paid to that Defaulting Lender); provided that such Defaulting Lender shall be entitled to receive fees pursuant to Section 4.1(b) for any period during which that Lender is a Defaulting Lender only to extent allocable to its pro rata share of the stated amountStated Amount of Letters of Credit for which it has adequately remedied all matters provided Cash Collateral pursuant to Section 2.17(a).
(iii) With respect to any fees not required to be paid to any Defaulting Lender pursuant to clause (ii) above, the Borrower shall (x) pay to each Non-Defaulting Lender that caused portion of any such fee otherwise payable to such Defaulting Lender with respect to such Defaulting Lender’s participation in Letters of Credit or Swingline Loans that has been reallocated to such Non-Defaulting Lender pursuant to Section 2.17(a)(i), (y) pay to each Issuing Lender the amount of any such fee otherwise payable to such Defaulting Lender to the extent allocable to each Issuing Lender’s Fronting Exposure to such Defaulting Lender, and (z) not be required to pay the remaining amount of any such fee.
(e) If the Borrower, the Administrative Agent and the Swingline Lender and each Issuing Lender agree in writing that a Lender is no longer a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any Cash Collateral), that Lender will, to the extent applicable, purchase at par that portion of outstanding Loans of the other Lenders 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 Swingline Loans to be held pro rata by the Lenders in accordance with the applicable Commitments (without giving effect to Section 2.17(a)(i)), whereupon such Lender will cease to be a Defaulting Lender, then the LC Exposure ; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Lenders shall be readjusted to reflect the inclusion of such Borrower while that Lender was a Defaulting Lender’s Revolving Credit Commitment and on such date such Defaulting Lender shall purchase at par such of ; provided further that except to the Loans of extent otherwise expressly agreed by the other Lenders as the Administrative Agent shall determine may be necessary in order for such affected parties, no change hereunder from Defaulting Lender to hold such Loans in accordance with its Applicable PercentageLender will constitute a waiver or release of any claim of any party hereunder arising from that Lender having been a Defaulting Lender.
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Sources: Amendment No. 3 (Informatica Inc.)