Defaulting Lender. At any time when a Lender is then a Defaulting Lender, the Borrower, at the Borrower’s election, may elect to terminate such Defaulting Lender’s Commitment hereunder; provided that (A) such termination must be of the 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 2.15 in lieu of a termination of Commitments pursuant to this Section 2.1(b)(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 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 2.17(a)(iii)), and letter of credit fees (subject to Section 2.17(a)(iii)) but specifically excluding any amounts owing under Section 2.11 as result of such payment of such Advances) and shall deposit with 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 2.17), (D) a Defaulting Lender’s Commitment may be terminated by the 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 Commitment shall be deemed terminated, and (3) such Defaulting Lender shall be relieved of its obligations hereunder as a “Revolving Lender” except as to its obligations under Section 8.4(b) and Section 9.1 shall continue with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Revolving Lender” 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 Swingline Lender, the Issuing Lender or any Lender may have against such Defaulting Lender. Notwithstanding anything herein to the contrary, the Non-Defaulting Lenders’ option to take an assignment as provided in Section 2.1(b)(ii)(B) may be exercised by a Non-Defaulting Lender in its sole and absolute discretion and nothing contained herein shall obligate any Non-Defaulting Lender to take any such assignment.
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. At Notwithstanding any time when 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 BorrowerIssuing Lenders shall not be required to issue, at extend, amend or increase any Letter of Credit, unless the Borrower’s election, may elect to terminate such Defaulting Lender’s Commitment hereunder; provided applicable Issuing Lender is satisfied that (A) such termination must the related exposure will be 100% covered by the Revolving Credit Commitments of the Defaulting Lender’s entire Commitment, (B) the Nonnon-Defaulting Lenders shall each have and/or cash collateral will be provided by the option to accept an assignment of the Defaulting Lender’s Commitment pursuant to Section 2.15 Borrowers in lieu of a termination of Commitments pursuant to accordance with this Section 2.1(b)(ii2.18(c), (C) to the extent that the Nonand participating interests in any such newly issued, extended or increased Letter of Credit shall be allocated among non-Defaulting Lenders do in a manner consistent with Section 2.18(c)(i) (and Defaulting Lenders shall not take an assignment as provided in the immediately preceding clause participate therein); and
(B), the Borrower shall pay all amounts owed by the Borrower e) any amount payable to such Defaulting Lender in hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender’s capacity as a Revolving Lender under this Agreement and under the other Credit Documents (including principal pursuant to Section 2.16(d) but excluding Section 2.17(b)) shall, in lieu of and interest on the Revolving Advances owed being distributed to such Defaulting Lender, accrued Commitment Fees (be retained by the Administrative Agent in a segregated account and, subject to Section 2.17(a)(iii))any applicable requirements of law, and letter be applied at such time or times as may be determined by the Administrative Agent (i) first, to the payment of credit fees (subject to Section 2.17(a)(iii)) but specifically excluding any amounts owing under Section 2.11 as result of by such payment of such Advances) and shall deposit with Defaulting Lender to the Administrative Agent into hereunder, (ii) second, pro rata, to the Cash Collateral Account 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 amount equal 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 ratable share breach of the Letter of Credit Exposure (including any such Letter of Credit Exposure that has been reallocated pursuant to Section 2.17)its obligations under this Agreement, (Dvii) seventh, to the payment of any amounts owing to the Borrowers as a Defaulting Lender’s Commitment may be terminated result of any judgment of a court of competent jurisdiction obtained by the 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) Borrowers against 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) result of such Defaulting Lender’s Commitment shall be deemed terminatedbreach of its obligations under this Agreement, and (3viii) 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 relieved 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 its any Loans, or reimbursement obligations hereunder as a “Revolving Lender” except as to its obligations under Section 8.4(b) and Section 9.1 shall continue with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Revolving Lender” hereunder, provided thatowed to, any such termination will not be deemed to be a waiver or release of any claim Defaulting Lender. In the event that the Borrower, the Administrative Agent, the Swingline 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 Issuing Lender or any Lender may have against LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Defaulting Lender. Notwithstanding anything herein to ’s Revolving Credit Commitment and on such date such Defaulting Lender shall purchase at par such of the contrary, Loans of the Non-Defaulting Lenders’ option to take an assignment other Lenders as provided in Section 2.1(b)(ii)(B) the Administrative Agent shall determine may be exercised by a Non-Defaulting Lender necessary in its sole and absolute discretion and nothing contained herein shall obligate any Non-order for such Defaulting Lender to take any hold such assignmentLoans 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. At Notwithstanding any time when a provision of this Agreement to the contrary, if any Lender is then becomes a Defaulting Lender, then the Borrower, at following provisions shall apply for so long as such Lender is a Defaulting Lender:
(i) The Commitment Fee shall cease to accrue on the Borrower’s election, may elect to terminate unfunded portion of the Commitment of such Defaulting Lender’s Commitment hereunder; provided that (A) such termination must be of the 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 2.15 in lieu of a termination of Commitments pursuant to this Section 2.1(b)(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 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 2.17(a)(iii)), and letter of credit fees (subject to Section 2.17(a)(iii)) but specifically excluding any amounts owing under Section 2.11 as result of such payment of such Advances) and shall deposit with 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 2.17), (D) a Defaulting Lender’s Commitment may be terminated by the 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) The Credit Exposure and the payment and deposit Available Commitment of amounts required to be made by the Borrower under clause (B) and (C) above, (1) such Defaulting Lender shall cease not be included in determining whether the Required Lenders have taken or may take any action hereunder (including any consent to be a “Revolving Lender” hereunder for all purposes except any amendment, waiver or other modification pursuant to Section 9.1); provided, 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, (2i) such Defaulting Lender’s Commitment shall may not be deemed terminated, increased or extended without its consent and (3ii) the principal amount of, or interest payable on, Loans of such Defaulting Lender may not be reduced or excused or the scheduled date of payment may not be postponed as to such Defaulting Lender without such Defaulting Lender’s consent;
(iii) If any Swing Line Exposure exists at the time such Lender becomes a Defaulting Lender, then:
(a) all or any part of the Swing Line Exposure of such Defaulting Lender shall be relieved reallocated among the non-Defaulting Lenders in accordance with their respective Commitment Percentages, provided that such reallocation does not cause the aggregate Credit Exposure of any non-Defaulting Lender to exceed its obligations hereunder Commitment; and
(b) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the applicable Borrowers shall, within two Business Days following notice by the Administrative Agent, prepay such Swing Line Exposure;
(iv) so long as such Lender is a “Revolving Defaulting Lender” except as , the Swing Line Lender shall not be required to fund any Swing Line Loan unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Lenders, and participating interests in any newly made Swing Line Loan shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.18(iii)(a) (and such Defaulting Lender shall not participate therein).
(v) If a Swing Line Lender has a good faith belief that any Lender has defaulted in fulfilling its obligations under Section 8.4(b) and Section 9.1 one or more other agreements in which such Lender commits to extend credit, such Swing Line Lender shall continue with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Revolving Lender” hereunder, provided that, any such termination will not be deemed required to be a waiver fund any Swing Line Loan unless such Swing Line Lender shall have entered into arrangements with the Borrower or release such Lender, satisfactory to such Swing Line Lender to defease any risk to it in respect of any claim such Lender hereunder.
(vi) In the event that the Borrower, the Administrative Agent, the Swingline Borrowers and the 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 Issuing Swing Line Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender or any Lender may have against shall purchase at par such Defaulting Lender. Notwithstanding anything herein to of the contrary, Loans of the Non-Defaulting Lenders’ option to take an assignment other Lenders as provided in Section 2.1(b)(ii)(B) the Administrative Agent shall determine may be exercised by a Non-Defaulting Lender necessary in its sole and absolute discretion and nothing contained herein shall obligate any Non-Defaulting order for such Lender to take any hold such assignmentLoans in accordance with its 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. At Notwithstanding any time when 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) fees shall cease to accrue on the Revolving Loan Commitment of such Defaulting Lender pursuant to Section 2.14(c)(i);
(b) the Commitments, Loans and other Revolving Credit Obligations of such Defaulting Lender shall not be included in determining whether the Required Lenders or Required Revolving Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 9.03); provided that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender affected thereby;
(c) if any 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 Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Pro Rata Shares of the Revolving Facility but only to the extent the sum of all non-Defaulting Lenders’ Revolving Credit Obligations plus such Defaulting Lender’s Swing Line Obligations and L/C Obligations does not exceed the total of all non-Defaulting Lenders’ Revolving Loan Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one (1) Business Day following notice by the 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 L/C Obligations (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 3.11 for so long as such L/C Obligations are outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s L/C Obligations pursuant to clause (ii) above, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 3.08 with respect to such Defaulting Lender’s L/C Obligations during the period such Defaulting Lender’s L/C Obligations are cash collateralized;
(iv) if the L/C Obligations of the non-Defaulting Lenders are reallocated pursuant to clause (i) above, then the fees payable to the Revolving Lenders pursuant to Section 3.08 shall be adjusted in accordance with such non-Defaulting Lenders’ Pro Rata Shares of the Revolving Facility; and
(v) if all or any portion of such Defaulting Lender’s L/C Obligations are neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other 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 Revolving Loan Commitment that was utilized by such L/C Obligations) and letter of credit fees payable under Section 3.08 with respect to such Defaulting Lender’s L/C Obligations shall be payable to such Issuing Bank until and to the extent that such L/C Obligations are reallocated and/or cash collateralized; and
(d) so long as such Lender is a Defaulting Lender, the BorrowerSwing Line Bank shall not be required to fund any Swing Line Loan and no Issuing Bank shall be required to issue, at amend or increase any Letter of Credit, unless it is satisfied that the Borrower’s election, may elect to terminate such Defaulting Lender’s Commitment hereunder; provided that (A) such termination must be of related exposure and the Defaulting Lender’s entire Commitment, (B) then outstanding L/C Obligations will be 100.0% covered by the NonRevolving Loan Commitments of the non-Defaulting Lenders shall each have and/or cash collateral will be provided by the option to accept an assignment of the Defaulting Lender’s Commitment pursuant to Borrower in accordance with Section 2.15 in lieu of a termination of Commitments pursuant to this Section 2.1(b)(ii9.02(c), (C) to the extent that the Nonand participating interests in any such newly made Swing Line Loan or any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders do not take an assignment as provided in the immediately preceding clause a manner consistent with Section 9.02(c)(i) (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 2.17(a)(iii)), and letter of credit fees (subject to Section 2.17(a)(iii)) but specifically excluding any amounts owing under Section 2.11 as result of such payment of such Advances) and shall deposit with 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 2.17), (D) a Defaulting Lender’s Commitment may be terminated by the 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 not participate therein). If (i) 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 Bankruptcy Event with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Revolving Lender” hereunder, (2) such Defaulting Lender’s Commitment shall be deemed terminated, and (3) such Defaulting parent of any Lender shall be relieved of its obligations hereunder occur following the Escrow Date and for so long as such event shall continue or (ii) the Swing Line Bank or any Issuing Bank has a “Revolving Lender” except as to good faith belief that any Lender has defaulted in fulfilling its obligations under Section 8.4(b) and Section 9.1 one or more other agreements in which such Lender commits to extend credit, the Swing Line Bank shall continue with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Revolving Lender” hereunder, provided that, any such termination will not be deemed required to fund any Swing Line Loan and such Issuing Bank shall not be a waiver required to issue, amend or release increase any Letter of Credit, unless 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 defease any claim risk to it in respect of such Lender hereunder. In the event that the Borrower, the Administrative Agent, the Swingline Borrower, the Swing Line Bank and the Issuing Banks each agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Issuing Swing Line Obligations and L/C Obligations of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Revolving Loan Commitment and on such date such Lender or any Lender may have against shall purchase at par such Defaulting Lender. Notwithstanding anything herein to of the contrary, Revolving Loans of the Non-Defaulting Lenders’ option to take an assignment other Revolving Lenders (other than Swing Line Loans) as provided in Section 2.1(b)(ii)(B) the Administrative Agent shall determine may be exercised by a Non-Defaulting Lender necessary in its sole and absolute discretion and nothing contained herein shall obligate any Non-Defaulting order for such Lender to take any hold such assignmentLoans in accordance with its Pro 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. At Notwithstanding any time when 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 Available Unused Commitment of such Defaulting Lender;
(b) Any Revolving Facility Commitment or any Revolving Facility Loan of such Defaulting Lender shall not be included in determining whether the Required Lenders, Special Majority Lenders or Super Majority Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 9.08); provided that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender under Section 9.04(a)(i) or subclauses (i), (ii) and (iii) of the first proviso to Section 9.08(b);
(c) If any 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 Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Revolving Facility Percentages, but only to the extent the sum of all non-Defaulting Lenders’ Revolving Facility Exposure plus such Defaulting Lender’s Swingline Exposure and Revolving L/C Exposure does not exceed the total of all non-Defaulting Lenders’ Revolving Facility Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the applicable 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 applicable Issuing Bank only such Borrower’s obligations corresponding to such Defaulting Lender’s 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 2.05(j) for so long as such Revolving L/C Exposure is outstanding;
(iii) if any Borrower Cash Collateralizes any portion of such Defaulting Lender’s Revolving L/C Exposure pursuant to subclause (ii) above, such Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.13 with respect to such Defaulting Lender’s Revolving L/C Exposure during the period such Defaulting Lender’s Revolving L/C Exposure is Cash Collateralized;
(iv) if the Revolving L/C Exposure of the non-Defaulting Lenders is reallocated pursuant to subclause (i) above, then the fees payable to the Lenders pursuant to Section 2.13 shall be adjusted in accordance with such non-Defaulting Lenders’ Revolving Facility Percentages; and
(v) if all or any portion of such Defaulting Lender’s Revolving L/C Exposure is neither reallocated nor Cash Collateralized pursuant to subclause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all fees payable under Section 2.13 with respect to such Defaulting Lender’s Revolving L/C Exposure shall be payable to such Issuing Bank until and to the extent that such Revolving L/C Exposure is reallocated and/or Cash Collateralized; and
(d) So long as such Lender is a Defaulting Lender, the BorrowerSwingline Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, at amend or increase any Letter of Credit, unless it is satisfied that the Borrower’s election, may elect to terminate such Defaulting Lender’s Commitment hereunder; provided that (A) such termination must be of related exposure and the Defaulting Lender’s entire Commitment, (B) then outstanding Revolving L/C Exposure will be 100% covered by the NonRevolving Facility Commitments of the non-Defaulting Lenders shall each have and/or Cash Collateral will be provided by the option to accept an assignment of the Defaulting Lender’s Commitment pursuant to Borrower in accordance with Section 2.15 in lieu of a termination of Commitments pursuant to this Section 2.1(b)(ii2.23(c), (C) to the extent that the Nonand participating interests in any newly made Swingline Loan or any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders do not take an assignment as provided in the immediately preceding clause a manner consistent with Section 2.23(c)(i) (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 2.17(a)(iii)), and letter of credit fees (subject to Section 2.17(a)(iii)) but specifically excluding any amounts owing under Section 2.11 as result of such payment of such Advances) and shall deposit with 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 2.17), (D) a Defaulting Lender’s Commitment may be terminated by the 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 not participate therein).
(e) In the event 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 Commitment shall be deemed terminated, and (3) such Defaulting Lender shall be relieved of its obligations hereunder as a “Revolving Lender” except as to its obligations under Section 8.4(b) and Section 9.1 shall continue with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Revolving Lender” 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 Borrowers, the Swingline Lender and the Issuing Banks each agrees (such agreement not to be unreasonably withheld or delayed) that a Defaulting Lender 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 (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 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 9.06 shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Issuing Bank or the Swingline Lender hereunder; third, to Cash Collateralize the Revolving L/C Exposure of such Defaulting Lender in 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; fifth, to be held in a deposit account 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 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, the Issuing Banks or the Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, the Issuing Banks or the Swingline Lender or any Lender may have against such Defaulting Lender as a result of such Defaulting Lender. Notwithstanding anything herein ’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default exists, to the contrarypayment of any amounts owing to the applicable Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, the Non-to such Defaulting Lenders’ option to take an assignment Lender or as provided in Section 2.1(b)(ii)(B) may be exercised otherwise directed by a Non-court of competent jurisdiction. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender in its sole and absolute discretion and nothing contained herein shall obligate any Non-that are applied (or held) to pay amounts owed by a Defaulting Lender or to take any post Cash Collateral pursuant to this Section 2.23 shall be deemed paid to and redirected by such assignmentDefaulting Lender, and each Lender irrevocably consents hereto.
Appears in 4 contracts
Sources: Asset Based Revolving Credit Agreement (Hexion Inc.), Amendment Agreement (Hexion Inc.), Amendment Agreement (Hexion Inc.)
Defaulting Lender. At any time when (a) If a Lender is then becomes, and during the period it remains, a Defaulting Lender, the Borrower, at the Borrower’s election, may elect to terminate following provisions shall apply:
(i) such Defaulting Lenders’ Ratable Share of the L/C Exposure and the Swing Line Advances will, subject to the limitation in the first proviso below, automatically be reallocated (effective on the day such Lender becomes a Defaulting Lender’s Commitment hereunder) 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, whether on the date that such Lender is required to purchase its participation in any Letter of Credit or otherwise); provided that (A) such termination must be the sum of the each Non-Defaulting Lender’s entire Commitmentaggregate principal amount of Revolving Credit Advances, (B) allocated share of the 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 Lenders shall each have the option to accept an assignment of the Defaulting Lender’s Commitment pursuant to Section 2.15 Lender as in lieu of a termination of Commitments pursuant to this Section 2.1(b)(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 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 2.17(a)(iii)), and letter of credit fees (subject to Section 2.17(a)(iii)) but specifically excluding any amounts owing under Section 2.11 as result of such payment of such Advances) and shall deposit with 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 2.17), (D) a Defaulting Lender’s Commitment may be terminated by the 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 effect at the time of such election reallocation 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) neither such reallocation nor any payment by a Non-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 Commitment shall be deemed terminated, and (3) such Defaulting Lender shall be relieved of its obligations hereunder as a “Revolving Lender” except as to its obligations under Section 8.4(b) and Section 9.1 shall continue with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Revolving Lender” hereunder, provided that, any such termination pursuant thereto will not be deemed to be constitute a waiver or release of any claim that the Borrower, the Administrative Agent, any Issuing Bank, any Swing Line Bank or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender;
(ii) to the Swingline extent that any portion (the “unreallocated portion”) of the Defaulting Lender’s share of the L/C Exposure and Swing Line Advances cannot be so reallocated, whether by reason of the proviso in clause (i) above or 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 (B) in the case of such Swing Line Advances, prepay (subject to clause (iii) below) and/or Cash Collateralize in full the unreallocated portion thereof, or (C) make other arrangements satisfactory to the 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 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 confirmation of such excess (it being understood that only such excess amount shall be so released); provided further that in accordance with Section 2.04, to the extent that the Borrower has Cash Collateralized the aggregate amount of the unreallocated portion of such L/C Exposure or Swing Line Advances, such unreallocated portion shall not accrue any fees, commissions or interest; and
(iii) any amount paid by the Borrower or otherwise received by the Agent for the account of a Defaulting Lender under this Agreement (whether on account of principal, interest, fees, indemnity payments or other amounts) will not be paid or distributed to such Defaulting Lender, but will instead be at the direction of the Borrower (A) retained by the Agent to Cash Collateralize the obligations of the Borrower to each Issuing Bank and each Swing Line Bank in respect of such Defaulting Lender’s unreallocated portion of the L/C Exposure or Swing Line Advances or to fund any Advance in respect of which such Defaulting Lender has failed to fund its portion thereof as required, or (B) retained by the Agent in a segregated non-interest bearing account until (subject to Section 2.20(d)) the termination of the Commitments and payment in full of all obligations of the Borrower hereunder and will be applied by the Agent, to the fullest extent permitted by law, to the making of payments from time to time in the following order of priority: first to the payment of any amounts owing by such Defaulting Lender to the Agent under this Agreement, second to the payment of any amounts owing by such Defaulting Lender to an Issuing Bank or a Swing Line Bank (pro rata as to the respective amounts owing to each of them) under this Agreement, third to the payment of post-default interest and then current interest due and payable to the 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 a court of competent jurisdiction 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 any such 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.
(b) 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 result of the operation of this Section 2.20. The rights and remedies against a Defaulting Lender under this Section 2.20 are in addition to any other rights and remedies which the Borrower, the Agent or any Lender may have against such Defaulting Lender. Notwithstanding anything herein .
(c) If the Borrower and the Agent agree in writing in their reasonable determination that a Defaulting Lender should no longer be deemed to be a Defaulting Lender, the Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any cash collateral), that Lender will, to the contraryextent applicable, purchase that portion of outstanding Advances and L/C Exposure of the Non-other Lenders or take such other actions as the Agent may determine to be necessary to cause the Advances and L/C Exposure to be held on a pro rata basis by the Lenders in accordance with their pro rata share, whereupon such Lender will cease to be a Defaulting Lenders’ option Lender; provided that no adjustments will be made retroactively with respect to take an assignment as provided in Section 2.1(b)(ii)(B) may be exercised fees accrued or payments made by or on behalf of the Borrower while that Lender was a Non-Defaulting Lender in its sole Lender; and absolute discretion and nothing contained herein shall obligate any Non-provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to take Lender will constitute a waiver or release of any claim of any party hereunder arising from such assignmentLender’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. At Notwithstanding the foregoing, in the event that at any time when a Lender one or more Revolving Lenders is then a Defaulting Lender, no LC Issuer shall be required to make any Revolving Facility LC Issuance unless either (i) such LC Issuer has entered into arrangements reasonably satisfactory to it and the BorrowerCompany to eliminate such LC Issuer’s risk with respect to the Revolving Facility LC Participations of the Defaulting Lender or Defaulting Lenders, at the Borrower’s election, may elect to terminate including by cash collateralizing such Defaulting Lender’s Commitment hereunder; provided that (A) such termination must be or Defaulting Lenders’ Funding Percentage of the Defaulting Lender’s entire Commitment, Revolving Facility LC Outstandings (B) it being understood that such LC Issuer would consider the Non-Defaulting 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 pursuant to this Section 2.1(b)(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 Company or such Defaulting Lender in or Defaulting Lenders providing cash collateral to the Revolver Agent, for the benefit of such applicable LC Issuer, to secure 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 or Defaulting Lender, accrued Commitment Fees (subject to Section 2.17(a)(iii)), and letter of credit fees (subject to Section 2.17(a)(iii)) but specifically excluding any amounts owing under Section 2.11 as result of such payment of such Advances) and shall deposit with the Administrative Agent into the Cash Collateral Account cash collateral in the amount equal to such Defaulting Lender’s ratable share Lenders’ Funding Percentage of the applicable Revolving Facility Letter of Credit Exposure Credit, a satisfactory arrangement); or (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 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 (Eii) such termination shall not be permitted if a Default has occurred and is continuing at Revolving Facility LC Issuance, taking into account the time potential failure of such election and termination. Upon written notice to the Defaulting Lender and the Administrative Agent of the Borrower’s election or Defaulting Lenders to terminate a Defaulting risk participate therein, will not cause (x) any Revolving Lender’s Revolving Facility Exposure to exceed its respective Revolving Commitment pursuant to this clause or (ii) and the payment and deposit of amounts required to be made by the Borrower under clause (B) and (C) above, (1y) such Defaulting Lender shall cease LC Issuer to be a “Revolving Lender” incur aggregate credit exposure 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 Revolving Loans and occurrences occurring before or concurrently with Revolving Facility LC Outstandings in excess of its ceasing to be a “Revolving Lender” hereunder, (2) such Defaulting Lender’s Commitment shall be deemed terminatedCommitments, and (3) the Company has undertaken, for the benefit of such Defaulting Lender shall be relieved of its obligations LC Issuer, pursuant to an instrument reasonably satisfactory in form and substance to such LC Issuer, not to thereafter incur Loans or Revolving Facility LC Outstandings hereunder as a “Revolving Lender” except as that would cause such LC Issuer to its obligations under Section 8.4(b) and Section 9.1 shall continue incur aggregate credit exposure hereunder with respect to events Revolving Loans and occurrences occurring before or concurrently with Revolving Facility LC Outstandings in excess of its ceasing to be a “Revolving Lender” 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 Swingline Lender, the Issuing Lender or any Lender may have against such Defaulting Lender. Notwithstanding anything herein to the contrary, the Non-Defaulting Lenders’ option to take an assignment as provided in Section 2.1(b)(ii)(B) may be exercised by a Non-Defaulting Lender in its sole and absolute discretion and nothing contained herein shall obligate any Non-Defaulting Lender to take any such assignmentCommitments.
Appears in 4 contracts
Sources: Credit Agreement (American Greetings Corp), Credit Agreement (American Greetings Corp), Credit Agreement (American Greetings Corp)
Defaulting Lender. At Notwithstanding the foregoing, in the event that at any time when a Lender one or more Canadian Lenders is then a Defaulting Lender, no LC Issuer shall be required to make any Canadian LC Issuance unless either (i) such LC Issuer has entered into arrangements reasonably satisfactory to it and the BorrowerCompany to eliminate such LC Issuer’s risk with respect to the Canadian LC Participations of the Defaulting Lender or Defaulting Lenders, at the Borrower’s election, may elect to terminate including by cash collateralizing such Defaulting Lender’s or Defaulting Lenders’ Canadian Commitment hereunder; provided that (A) such termination must be Percentage of the Defaulting Lender’s entire Commitment, Canadian LC Outstandings (B) it being understood that such LC Issuer would consider the Non-Defaulting 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 pursuant to this Section 2.1(b)(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 Company or such Defaulting Lender in or Defaulting Lenders providing cash collateral to the Revolver Agent, for the benefit of such LC Issuer, to secure 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 or Defaulting Lender, accrued Commitment Fees (subject to Section 2.17(a)(iii)), and letter of credit fees (subject to Section 2.17(a)(iii)) but specifically excluding any amounts owing under Section 2.11 as result of such payment of such Advances) and shall deposit with the Administrative Agent into the Cash Collateral Account cash collateral in the amount equal to such Defaulting Lender’s ratable share Lenders’ Funding Percentage of the Canadian Letter of Credit Exposure Credit, a satisfactory arrangement); or (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 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 (Eii) such termination shall not be permitted if a Default has occurred and is continuing at Canadian LC Issuance, taking into account the time potential failure of such election and termination. Upon written notice to the Defaulting Lender and the Administrative Agent of the Borrower’s election or Defaulting Lenders to terminate a Defaulting risk participate therein, will not cause (x) any Canadian Lender’s Canadian Sub-Facility Exposure to exceed its respective Canadian Commitment pursuant to this clause or (ii) and the payment and deposit of amounts required to be made by the Borrower under clause (B) and (C) above, (1y) such Defaulting Lender shall cease LC Issuer to be a “Revolving Lender” incur aggregate credit exposure 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 Revolving Loans and occurrences occurring before or concurrently with Canadian LC Outstandings in excess of its ceasing to be a “Revolving Lender” hereunder, (2) such Defaulting Lender’s Commitment shall be deemed terminatedCommitments, and (3) the Company has undertaken, for the benefit of such Defaulting Lender shall be relieved of its obligations LC Issuer, pursuant to an instrument reasonably satisfactory in form and substance to such LC Issuer, not to thereafter incur Revolving Loans or Canadian LC Outstandings hereunder as a “Revolving Lender” except as that would cause such LC Issuer to its obligations under Section 8.4(b) and Section 9.1 shall continue incur aggregate credit exposure hereunder with respect to events Revolving Loans and occurrences occurring before or concurrently with Canadian LC Outstandings in excess of its ceasing to be a “Revolving Lender” 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 Swingline Lender, the Issuing Lender or any Lender may have against such Defaulting Lender. Notwithstanding anything herein to the contrary, the Non-Defaulting Lenders’ option to take an assignment as provided in Section 2.1(b)(ii)(B) may be exercised by a Non-Defaulting Lender in its sole and absolute discretion and nothing contained herein shall obligate any Non-Defaulting Lender to take any such assignmentCommitments.
Appears in 4 contracts
Sources: Credit Agreement (American Greetings Corp), Credit Agreement (American Greetings Corp), Credit Agreement (American Greetings Corp)
Defaulting Lender. At Notwithstanding any time when 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) fees shall cease to accrue on the Revolving Credit Commitment of such Defaulting Lender pursuant to subsection 4.9;
(b) the Aggregate Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to subsection 11.1), provided that any waiver, amendment or modification (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 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 Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Revolving Credit Commitment Percentages but only to the extent the sum of all non-Defaulting Lenders’ Aggregate Revolving Credit Extensions of Credit and participations in Swing Line Loans plus such Defaulting Lender’s Swing Line Exposure and L/C Exposure does not exceed the total of all non-Defaulting Lenders’ Revolving Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within three Business 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 Borrower’s obligations corresponding to such Defaulting Lender’s L/C Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) for so long as such L/C Exposure is outstanding;
(iii) if the Borrower Cash Collateralizes any portion of such Defaulting Lender’s L/C Exposure pursuant to clause (ii) above, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to subsection 4.11 with respect to such Defaulting Lender’s L/C Exposure during the period such Defaulting Lender’s L/C Exposure is Cash Collateralized;
(iv) if the L/C Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to subsection 4.9 and subsection 4.11 shall be adjusted in accordance with such non-Defaulting Lenders’ Revolving Credit Commitment Percentages; and
(v) if all or any portion of such Defaulting Lender’s L/C Exposure is neither reallocated nor Cash Collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of the Issuing Lender or any other Lender hereunder, all letter of credit fees payable under subsection 4.11 with respect to such Defaulting Lender’s L/C Exposure shall be payable to the Issuing Lender until and to the extent that such L/C Exposure is reallocated and/or Cash Collateralized; and
(d) so long as such Lender is a Defaulting Lender, the BorrowerSwing Line Lender shall not be required to fund any Swing Line Loan and the Issuing Lender shall not be required to issue, at the Borrower’s electionamend or increase any Letter of Credit, may elect unless it has received assurances satisfactory to terminate such Defaulting Lender’s Commitment hereunder; provided it that (A) such termination must be of the Defaulting Lender’s entire Commitment, (B) the Nonnon-Defaulting Lenders will cover the related exposure and/or Cash Collateral will be provided by the Borrower, and participating interests in any newly made Swing Line Loan or any newly issued or increased Letter of Credit 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 pursuant to this Section 2.1(b)(ii), (C) to the extent that the Nonbe allocated among non-Defaulting Lenders do not take an assignment as provided in the immediately preceding clause a manner consistent with subsection 4.21(c)(i) (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 2.17(a)(iii)), and letter of credit fees (subject to Section 2.17(a)(iii)) but specifically excluding any amounts owing under Section 2.11 as result of such payment of such Advances) and shall deposit with 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 2.17), (D) a Defaulting Lender’s Commitment may be terminated by the 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 not participate therein). In the event 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 Commitment shall be deemed terminated, and (3) such Defaulting Lender shall be relieved of its obligations hereunder as a “Revolving Lender” except as to its obligations under Section 8.4(b) and Section 9.1 shall continue with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Revolving Lender” 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 Swingline LenderBorrower, the Swing line Lender and the Issuing Lender or any each agrees that a Defaulting Lender may have against has adequately remedied all matters that caused such Revolving Lender to be a Defaulting Lender. Notwithstanding anything herein , then the Swing Line Exposure and L/C Exposure of the Revolving Lenders shall be readjusted to reflect the contrary, inclusion of such Revolving Lender’s Commitment and on such date such Revolving Lender shall purchase at par such of the Non-Defaulting Lenders’ option to take an assignment Revolving Loans of the other Revolving Lenders (other than Swing Line Loans) as provided in Section 2.1(b)(ii)(B) the Administrative Agent shall determine may be exercised by a Non-Defaulting Lender necessary in its sole and absolute discretion and nothing contained herein shall obligate any Non-Defaulting order for such Revolving Lender to take any hold such assignmentRevolving Loans in accordance with its 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. At Notwithstanding any time when a provision of this Agreement to the contrary, if any Lender is then becomes a Defaulting Lender, then the Borrower, following provisions shall apply for so long as such Lender is a Defaulting Lender:
4.11.1 The Unused Line Fee shall cease to accrue on 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 subsection 4.11.2(v) below);
4.11.2 If any Letters of Credit are outstanding at the Borrower’s election, may elect to terminate such time a Lender becomes a Defaulting Lender’s Commitment hereunder; provided that Lender then:
(A) the exposure under all or any part of any Letters of Credit shall be reallocated among the applicable non-Defaulting Lenders that are Revolving Credit Lenders in accordance with their respective Pro Rata Percentages but only to the extent the sum of all such termination must be non-Defaulting Lenders’ Revolving Credit Loans outstanding, plus the LC Amount, does not exceed the total of the all such non-Defaulting Lender’s entire Commitment, Lenders’ Revolving Credit Commitments; and (B) the Non-Defaulting 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 pursuant to this Section 2.1(b)(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 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 2.17(a)(iii)), and letter of credit fees (subject to Section 2.17(a)(iii)) but specifically excluding any amounts owing under Section 2.11 as result of such payment of such Advances) and shall deposit with 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 2.17), (D) a Defaulting Lender’s Commitment may be terminated by the 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” hereunderany such exposure so reallocated, (2) such Defaulting Lender’s Commitment shall be deemed terminated, and (3) such each applicable non-Defaulting Lender shall be relieved of its obligations hereunder as a “Revolving Lender” except as to its obligations under Section 8.4(b) and Section 9.1 shall continue with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Revolving Lender” hereunder, provided that, any such termination will not be deemed to be have irrevocably and unconditionally purchased from the 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 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 non-Defaulting L▇▇▇▇▇’s increased exposure following such reallocation;
(ii) if the reallocations described in clause (i) above cannot, or can only partially, be effected, Borrowers shall within one (1) Business Day following notice by Administrative Agent (after giving effect to any partial reallocation pursuant to clause (i) above) cash collateralize Letters of Credit in an amount equal to the product of such Defaulting Lender’s Pro Rata Percentage times the total LC Amount;
(iii) if any portion of the Letters of Credit is cash collateralized pursuant to clause (ii) above, Borrowers shall not be required to pay the Letter of Credit fee described in clause (i) of Section 3.4 with respect to such portion so long as it is cash collateralized;
(iv) if any portion of the exposure under Letters of Credit of such Defaulting Lender is reallocated to the non-Defaulting Lenders pursuant to clause (i) above, then the Letter of Credit fee described in clause (i) of Section 3.4 with respect to such portion so reallocated to each such non-Defaulting Lender shall be paid to such non-Defaulting Lender; and
(v) if any portion of the exposure under Letters of Credit of such Defaulting Lender is neither cash collateralized nor reallocated pursuant to this subsection 4.11.2, then, without prejudice to any rights or remedies of Issuing Bank or any Lender hereunder, the Unused Line Fee that otherwise would have been payable to such Defaulting Lender (with respect to the portion of such Defaulting Lender’s Revolving Credit Commitment that was utilized by such Letters of Credit) and the Letter of Credit fee described in clause (i) of Section 3.4 payable with respect to such Letters of Credit shall be payable to Issuing Bank until such Letters of Credit are fully cash collateralized and/or reallocated.
4.11.3 So long as any Lender is a Defaulting Lender, no Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the Borrowerrelated exposure will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Lenders and/or cash collateralized in accordance with subsection 4.11.2, and participations in any such newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in accordance with their respective Pro Rata Percentages (and Defaulting Lenders shall not participate therein).
4.11.4 Any amount payable to a Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise but excluding subsection 13.5.6) may, in lieu of being distributed to such Defaulting Lender, be retained by Administrative Agent in a segregated non-interest bearing account and, subject to any Applicable Law, be applied at such time or times as may be determined by Administrative Agent (i) first, to the payment of any amounts owing by such Defaulting Lender to Administrative Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to Issuing Bank hereunder, (iii) third, 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 Administrative Agent, (iv) fourth, if so determined by Administrative Agent and Borrowers, held in such account as cash collateral for future funding obligations of the Swingline LenderDefaulting Lender under this Agreement, (v) fifth, pro rata, to the Issuing Lender payment of any amounts owing to Borrowers or the Lenders as a result of any judgment of a court of competent jurisdiction obtained by any Borrower or any Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement and (vi) sixth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided, that if such payment is a prepayment of the principal amount of any Loans or LC Obligations in respect of which a Defaulting Lender has funded its participation obligations, such payment shall be applied solely to prepay the Loans of, and LC Obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans of, or LC Obligations owed to, any Defaulting Lender.
4.11.5 In the event that Administrative Agent, Borrowers and Issuing Bank agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the exposure of the Lenders under the Letters of Credit shall be readjusted to reflect the inclusion of such L▇▇▇▇▇’s Revolving Credit Commitment and on such date such Lender shall purchase at par such of the Revolving Credit Loans of the other Lenders as Administrative Agent shall determine may be necessary in order for such Lender to hold such Revolving Credit Loans in accordance with its 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. Notwithstanding anything herein to The arrangements permitted or required by this Section 4.11 shall be permitted under this Agreement, notwithstanding any limitation on Liens or the contrary, the Non-Defaulting Lenders’ option to take an assignment as provided in Section 2.1(b)(ii)(B) may be exercised by a Non-Defaulting Lender in its sole and absolute discretion and nothing contained herein shall obligate any Non-Defaulting Lender to take any such assignmentpro 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. At Notwithstanding any time when a provision of this Agreement to the contrary, if any Lender is then becomes a Defaulting Lender, then the Borrowerfollowing provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 3.5;
(b) The Aggregate Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 11.1), 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 any Swingline Exposure or L/C Exposure exists at the Borrower’s election, may elect time a Revolving Lender becomes a Defaulting Lender then:
(i) all or any part of such Swingline Exposure and L/C Exposure shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages but only to terminate the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Commitment hereunder; provided that Swingline Exposure and L/C Exposure does not exceed the total of all non-Defaulting Lenders’ Revolving Commitments and (Ay) the conditions set forth in Section 6.2 are satisfied at such termination must time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be of effected, the 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 entire Commitment, L/C Exposure (Bafter giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the Non-Defaulting Lenders shall each have procedures set forth in Section 9 for so long as such L/C Exposure is outstanding;
(iii) if the option to accept an assignment Borrower cash collateralizes any portion of the such Defaulting Lender’s Commitment pursuant to Section 2.15 in lieu of a termination of Commitments L/C Exposure pursuant to this Section 2.1(b)(ii), (C) to the extent that the Non-Defaulting Lenders do not take an assignment as provided in the immediately preceding clause (B4.16(c), the Borrower shall not be required to pay all amounts owed by the Borrower any fees 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 pursuant to such Defaulting Lender, accrued Commitment Fees (subject to Section 2.17(a)(iii)), and letter of credit fees (subject to Section 2.17(a)(iii)) but specifically excluding any amounts owing under Section 2.11 as result of such payment of such Advances) and shall deposit Section3.9 with the Administrative Agent into the Cash Collateral Account cash collateral in the amount equal respect to such Defaulting Lender’s ratable share of L/C Exposure during the Letter of Credit Exposure (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 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) period such Defaulting Lender’s Commitment L/C Exposure is cash collateralized;
(iv) if the L/C Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 4.16(c), then the fees payable to the Lenders pursuant to Section3.5 and Section 3.9 shall be deemed terminatedadjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; or
(v) if any Defaulting Lender’s L/C Exposure is neither cash collateralized nor reallocated pursuant to this Section 4.16(c), and (3) such Defaulting Lender shall be relieved then, without prejudice to any rights or remedies of its obligations hereunder as a “Revolving Lender” except as to its obligations under Section 8.4(b) and Section 9.1 shall continue with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Revolving Lender” 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 Swingline Lender, the Issuing Lender or any Lender hereunder, all letter of credit fees payable under Section 3.9 with respect to such Defaulting Lender’s L/C Exposure shall be payable to the Issuing Lender until such 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 Lender shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Revolving Commitments of the non-Defaulting Lenders in a manner consistent with this Section 4.16(c)(i) and/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 4.8 but excluding Section 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 have 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 Issuing Lender or Swingline Lender hereunder, (iii) third, if such Defaulting Lender is a Revolving Lender and the Administrative Agent so determines or is requested by an Issuing Lender or Swingline Lender, 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 such Defaulting Lender is a Revolving Lender and the Administrative Agent and the Borrower so 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 Borrower as a result of any judgment of a court of competent jurisdiction obtained by the 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 L/C Disbursements which such Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 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, such Defaulting Lender. Notwithstanding anything herein to In the contraryevent that the Administrative Agent, the Non-Borrower, the Issuing Lender and the Swingline Lender (as applicable) each agrees that a Defaulting Lenders’ option Lender which is a Revolving Lender has adequately remedied all matters that caused such Lender to take an assignment be a Defaulting Lender, then the Swingline Exposure and L/C Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as provided in Section 2.1(b)(ii)(B) the Administrative shall determine may be exercised by a Non-Defaulting Lender necessary in its sole and absolute discretion and nothing contained herein shall obligate any Non-Defaulting order for such Lender to take any hold such assignmentLoans 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. At any 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; provided that (A) such termination must be of the Defaulting Lender’s entire Revolving Commitment, (B) the Non-Defaulting Lenders shall each have the option to accept an assignment of the Defaulting Lender’s Commitment pursuant to Section 2.15 in lieu of a termination of Commitments pursuant to this Section 2.1(b)(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 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 commitment fees (subject to Section 2.17(a)(iii2.7(a)), and letter of credit fees (subject to Section 2.17(a)(iii)) but specifically excluding any amounts owing under Section 2.11 2.10 as result of such payment of such Revolving 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 2.17)Exposure, (DC) a Defaulting Lender’s Revolving Commitment may be terminated by the 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 Revolving 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 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 Lender’s rights and obligations as a Revolving Lender under Sections 2.122.11, 2.142.13, 8.4 8.5 and 9.1 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 Revolving Commitment shall be deemed terminated, and (3) such Defaulting Lender shall be relieved of its obligations hereunder as a “Revolving Lender” except as to its obligations under Section 8.4(b) and Section 9.1 shall continue with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Revolving Lender” 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 Swingline Lender, the Issuing Lender or any Lender may have against such Defaulting Lender. Notwithstanding anything herein to the contrary, the Non-Defaulting Lenders’ option to take an assignment as provided in Section 2.1(b)(ii)(B) may be exercised by a Non-Defaulting Lender in its sole and absolute discretion and nothing contained herein shall obligate any Non-Defaulting Lender to take any such assignment”.
Appears in 3 contracts
Sources: Credit Agreement (Carbo Ceramics Inc), Credit Agreement (Carbo Ceramics Inc), Credit Agreement (Carbo Ceramics Inc)
Defaulting Lender. At 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) if any Swingline Loans are outstanding or any Letter of Credit Outstandings exist at the time when a Revolving Lender becomes a Defaulting Lender then:
(i) all or any part of the participating risk in such Swingline Loans and Letter of Credit Outstandings shall be reallocated among the Revolving Lenders that are Non-Defaulting Revolving Lenders pro rata in accordance with their respective RL Percentage but only to the extent (x) the sum of all Revolving Extensions of Credit of all Revolving Lenders that are Non-Defaulting Revolving Lenders does not exceed the aggregate amount of all Revolving 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 of such Revolving Lender do not exceed its Revolving Loan Commitment at such time and (z) the conditions set forth in Section 7.2 are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one (1) Business Day following notice by the Administrative Agent (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 RL Percentage of all Letter of Credit Outstandings (after giving effect to any partial reallocation pursuant to clause (i) above) for so long as such Letter of Credit Outstandings exist;
(iii) the Borrower shall not be required to pay any Letter of Credit Fees to such Defaulting Lender pursuant to Section 4.1(b) with respect to such Defaulting Lender’s RL Percentage of Letter of Credit Outstandings;
(iv) if the participating risk in Letter of Credit Outstandings of the Non-Defaulting Lenders is reallocated pursuant to this Section 2.17(a), then the Letter of Credit Fees payable to the Revolving Lenders pursuant to Section 4.1(b) shall be adjusted in accordance with such Non-Defaulting Lenders’ RL Percentages; and
(v) if any Defaulting Lenders’ RL Percentage of Letter of Credit Outstandings is neither Collateralized nor reallocated pursuant to this Section 2.17(a), then, without prejudice to any rights or remedies of any Issuing Lender or any Revolving Lender hereunder, all Letter of Credit Fees payable under Section 4.1(b) with respect to such Defaulting Lender’s RL Percentage of Letter of Credit Outstandings shall be payable to each Issuing Lender until such portion of such Letter of Credit Outstandings is Collateralized and/or reallocated.
(b) 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 Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Lender shall be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Revolving 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 ratably in accordance with 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 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 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 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 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.
(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 other amounts received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Section 11 or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 13.2 shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to each Issuing Lender or the Swingline Lender hereunder; third, to Cash Collateralize each Issuing Lender’s Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.17(a)(ii); fourth, as the Borrower may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement; fifth, if so determined by the Administrative Agent and the Borrower, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations 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 Credit issued under this Agreement, in accordance with Section 2.17(a)(ii); sixth, to the payment of any amounts owing to the Lenders, each Issuing Lender or the Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, Issuing Lender or Swingline Lender against such Defaulting Lender as a result of such 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 as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such 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 reimbursement obligations with respect to Letters of Credit in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 7.2 were satisfied and waived, such payment shall be applied solely to pay the Loans of, and reimbursement obligations with respect to Letters of Credit owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or reimbursement obligations with respect to Letters of Credit owed to, such Defaulting Lender 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). 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 2.17(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 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 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 BorrowerAdministrative Agent will so notify the parties hereto, at the Borrower’s election, may elect to terminate such Defaulting Lender’s Commitment hereunder; provided that (A) such termination must be whereupon as of the Defaulting Lender’s entire Commitment, effective date specified in such notice and subject to any conditions set forth therein (B) the Non-Defaulting Lenders shall each have the option which may include arrangements with respect to accept an assignment of the Defaulting Lender’s Commitment pursuant to Section 2.15 in lieu of a termination of Commitments pursuant to this Section 2.1(b)(iiany Cash Collateral), (C) that Lender will, to the extent applicable, purchase at par that portion of outstanding Loans of the Non-Defaulting other Lenders do not or take an assignment such other actions as provided the Administrative Agent may determine to be necessary to cause the Loans and funded and unfunded participations in the immediately preceding clause (B), the Borrower shall pay all amounts owed Letters of Credit and Swingline Loans to be held pro rata by the Borrower to such Defaulting Lender Lenders in such Defaulting Lender’s capacity as a Revolving Lender under this Agreement and under accordance with the other Credit Documents applicable Commitments (including principal of and interest on the Revolving Advances owed to such Defaulting Lender, accrued Commitment Fees (subject without giving effect to Section 2.17(a)(iii2.17(a)(i)), and letter of credit fees (subject to Section 2.17(a)(iii)) but specifically excluding any amounts owing under Section 2.11 as result of whereupon 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 2.17), (D) a Defaulting Lender’s Commitment may be terminated by the 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 will cease to be a “Revolving Defaulting Lender” hereunder for all purposes except ; provided that such Lender’s rights and obligations as a Revolving Lender under Sections 2.12, 2.14, 8.4 and 9.1 shall continue no adjustments will be made retroactively with respect to events and occurrences occurring before fees accrued or concurrently with its ceasing to be payments made by or on behalf of the Borrower while that Lender was a “Revolving Lender” hereunder, (2) such Defaulting Lender’s Commitment shall be deemed terminated; provided further that except to the extent otherwise expressly agreed by the affected parties, and (3) such no change hereunder from Defaulting Lender shall be relieved of its obligations hereunder as a “Revolving Lender” except as to its obligations under Section 8.4(b) and Section 9.1 shall continue with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Revolving Lender” hereunder, provided that, any such termination Lender will not be deemed to be constitute a waiver or release of any claim of any party hereunder arising from that the Borrower, the Administrative Agent, the Swingline Lender, the Issuing Lender or any Lender may have against such having been a Defaulting Lender. Notwithstanding anything herein to the contrary, the Non-Defaulting Lenders’ option to take an assignment as provided in Section 2.1(b)(ii)(B) may be exercised by a Non-Defaulting Lender in its sole and absolute discretion and nothing contained herein shall obligate any Non-Defaulting Lender to take any such assignment.
Appears in 3 contracts
Sources: Credit and Guaranty Agreement (Ancestry.com LLC), Credit and Guaranty Agreement (Anvilire), Credit and Guaranty Agreement (Anvilire)
Defaulting Lender. At Notwithstanding any time when a provision of this Agreement to the contrary, if any Lender is then becomes a Defaulting Lender, then the Borrower, following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) The Unused Line Fee shall cease to accrue on the unfunded portion of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.15;
(b) If any Letters of Credit are outstanding at the Borrower’s election, may elect to terminate such time a Lender becomes a Defaulting Lender’s Commitment hereunder; provided that Lender then: (Ai) such termination must be all or any part of the Defaulting Lender’s entire Commitment, (B) obligation to participate in Letters of Credit shall be reallocated among the Nonnon-Defaulting Lenders shall each have the option in accordance with their respective Pro Rata Shares as determined pursuant to accept an assignment clause (a) of the definition of “Pro Rata Share” but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Outstandings plus such Defaulting Lender’s Commitment obligation to participate in Letters of Credit does not exceed the total of all non-Defaulting Lenders’ Commitments and (y) the conditions set forth in Section 2.18 are satisfied at such time; (ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, Borrower shall, within one (1) Business Day following notice by Administrative Agent, Cash Collateralize such Defaulting Lender’s obligation to participate in Letters of Credit (after giving effect to any partial reallocation pursuant to clause (i) above) for so long as such obligation to participate in Letters of Credit is outstanding; (iii) if Borrower Cash Collateralizes any portion of such Defaulting Lender’s obligation to participate in Letters of Credit pursuant to this Section, Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.18 with respect to such Defaulting Lender’s obligation to participate in Letters of Credit during the period such Defaulting Lender’s obligation to participate in Letters of Credit is Cash Collateralized; (iv) if the obligation to participate in Letters of Credit of the non-Defaulting Lenders is reallocated pursuant to this Section, then the fees payable to the Lenders pursuant to Section 2.15 and Section 2.18 shall be adjusted in lieu accordance with such non-Defaulting Lenders’ Pro Rata Shares (as determined pursuant to clause (a) of a termination the definition of Commitments “Pro Rata Share”); or (v) if any Defaulting Lender’s obligation to participate in Letters of Credit is neither Cash Collateralized nor reallocated pursuant to this Section, then, without prejudice to any rights or remedies of any Issuing Lender or any Lender hereunder, all letter of credit fees payable under Section 2.1(b)(ii), (C) 2.18 with respect 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 obligation to participate in Letters of Credit shall be payable to the applicable Issuing Lender until such obligation to participate in Letters of Credit is cash collateralized and/or reallocated; and
(c) So long as any Lender is a Defaulting Lender, no Issuing Lender shall be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Revolving Loan Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by Borrower in accordance with this Section, and participating interests in any such newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with this Section (and Defaulting Lenders shall not participate therein).
(d) In the event that Administrative Agent, Borrower, and the applicable Issuing Lender(s) each agrees that a Defaulting Lender under this Agreement 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 under on such date such Lender shall purchase at par such of the Loans of the other Credit Documents 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 (including principal 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 interest 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 amount payable to a Defaulting Lender hereunder (whether on the Revolving Advances owed account of principal, interest, fees or otherwise) shall, in lieu of being distributed to such Defaulting Lender, accrued Commitment Fees (be retained by Administrative Agent in a segregated account and, subject to Section 2.17(a)(iii))any applicable requirements of Law, and letter be applied at such time or times as may be determined by Administrative Agent (i) first, to the payment of credit fees (subject to Section 2.17(a)(iii)) but specifically excluding any amounts owing by such Defaulting Lender to Administrative Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to the Issuer Lender(s) hereunder, (iii) third, to the funding of any Revolving Loan or the funding or Cash Collateralization of any participating interest 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 Administrative Agent, (iv) fourth, if so determined by Administrative Agent and Borrower, held in such account as cash collateral for future funding obligations of the Defaulting Lender under Section 2.11 this Agreement, (v) fifth, pro rata, to the payment of any amounts owing to Borrower, Administrative Agent or the Lenders as a result of any judgment of a court of competent jurisdiction obtained by Borrower, Administrative Agent, or any Lender against such payment Defaulting Lender as a result 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 breach of the Letter of Credit Exposure (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 Borrower its obligations 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 LendersAgreement, and (Evi) 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 sixth, 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 or as otherwise directed by a “Revolving Lender” hereunder for all purposes except court of competent jurisdiction; provided, that if such Lender’s rights and payment is (x) a prepayment of the principal amount of any Loans or reimbursement obligations as a Revolving Lender in respect of draws under Sections 2.12, 2.14, 8.4 and 9.1 shall continue Letters of Credit with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Revolving Lender” hereunder, (2) such Defaulting Lender’s Commitment shall be deemed terminated, and (3) such Defaulting Lender shall be relieved of its obligations hereunder as a “Revolving Lender” except as to its obligations under Section 8.4(b) and Section 9.1 shall continue with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Revolving Lender” 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 Swingline Lender, which the Issuing Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 5.1 are satisfied, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all Lenders that are not Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Lender may have against such Defaulting Lender. .
(f) Notwithstanding anything set forth herein to the contrary, the Non-Defaulting Lenders’ option to take an assignment as provided in Section 2.1(b)(ii)(B) may be exercised by a Non-Defaulting Lender 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 its sole 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 Lenders or all affected Lenders, and absolute discretion and nothing contained herein no Defaulting Lender shall obligate have any Non-other right to approve or disapprove any amendment, 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 require the consent of such Defaulting Lender.
(g) The failure of any Defaulting Lender to take make any Loan, advance or any payment required by it hereunder shall not relieve any other Lender of its obligations to make such assignmentLoan, 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 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 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 and all accrued interest and fees with respect thereto through the date of sale, such purchase and sale to be consummated (if at all upon Administrative Agent’s election) pursuant to an 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. At 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) fees shall cease to accrue on the unfunded portion of the Revolving Credit Commitment of such Defaulting Lender pursuant to Sections 2.6 and 3.3;
(b) the Revolving Credit Commitment and the Revolving Extension of Credit of such Defaulting Lender shall not be included in determining whether all the Lenders, the Required Lenders or the Supermajority Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.1), 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 (i) any Swing Line Loan exists or (ii) any Letter of Credit is outstanding, at the time when a Lender becomes a Defaulting Lender then:
(i) all or any part of such Defaulting Lender’s L/C Exposure and Swing Line Exposure shall be reallocated among the non-Defaulting Lenders in accordance with their respective Revolving Credit Percentage (calculated without regard to such Defaulting Lender’s Revolving Credit Commitment) but only to the extent that (x) the conditions set forth in Section 5.2 are satisfied at such 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 Section 2.23(c)(i) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent prepay such Defaulting Lender’s L/C Exposure and Swing Line Exposure;
(d) so long as any Lender is then a Defaulting Lender, the BorrowerSwing Line Lender shall not be required to fund any Swing Line Loan, at unless it is satisfied that the Borrower’s electionrelated exposure will be covered by the Revolving Credit Commitments of the non-Defaulting Lenders, may elect to terminate such and participating interests in any newly made Swing Line Loan shall be allocated among non-Defaulting Lenders;
(e) so long as any Lender is a Defaulting Lender’s Commitment hereunder; provided , the Issuing Lender shall not be required to issue any Letter of Credit, unless it is satisfied that (A) such termination must the related exposure will be covered by the Revolving Credit Commitments of the Defaulting Lender’s entire Commitment, (B) the Nonnon-Defaulting Lenders Lenders, and participating interests in any newly issued Letter of Credit 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 pursuant to this Section 2.1(b)(ii), (C) to the extent that the Nonbe allocated among non-Defaulting Lenders do not take an assignment as provided in the immediately preceding clause Lenders;
(B), the Borrower shall pay all amounts owed by the Borrower f) any amount payable to such Defaulting Lender in hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender’s capacity as a Revolving Lender under this Agreement and under the other Credit Documents (including principal pursuant to Section 2.6 or 3.3) shall, in lieu of and interest on the Revolving Advances owed being distributed to such Defaulting Lender, accrued Commitment Fees (be retained by the Administrative Agent in a segregated account and, subject to Section 2.17(a)(iii))any applicable Requirements of Law, and letter be applied at such time or times as may be determined by the Administrative Agent (i) first, to the payment of credit fees (subject to Section 2.17(a)(iii)) but specifically excluding any amounts owing under Section 2.11 as result of by such payment of such Advances) and shall deposit with Defaulting Lender to the Administrative Agent into hereunder, (ii) second, pro rata, to the Cash Collateral Account payment of any amounts owing by such Defaulting Lender, any Issuing Lender 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, 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 amount equal 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, 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, any Issuing Lender or the Swing Line Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, any Issuing Lender or the Swing Line Lender against such Defaulting Lender as a result of such Defaulting Lender’s ratable share breach of the Letter of Credit Exposure (including any such Letter of Credit Exposure that has been reallocated pursuant to Section 2.17)its obligations under this Agreement, (Dvii) seventh, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result of such Defaulting Lender’s Commitment may be terminated by the Borrower breach of its obligations 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 LendersAgreement, and (Eviii) eighth, to 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 or as otherwise directed by a court of the Borrower’s election to terminate a Defaulting Lender’s Commitment pursuant competent jurisdiction, provided, with respect to this clause (iiviii), that if such payment is (x) a prepayment of the principal amount of any Loans which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 2.9 are satisfied, such payment and deposit of amounts required shall be applied solely to be prepay the Loans made by all non-Defaulting Lenders pro rata prior to being applied to the Borrower under clause prepayment of any Loans, or Reimbursement Obligations owed to, any Defaulting Lender; and
(Bg) and (C) above, (1) such for purposes of computing the amount of the obligation of each non-Defaulting Lender shall cease to be a acquire, refinance or fund participations in Letters of Credit pursuant to Section 3.1, the “Revolving LenderCredit Percentage” 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 Commitment shall be deemed terminated, and (3) such of each non-Defaulting Lender shall be relieved computed without giving effect to the Revolving Credit Commitment of its obligations hereunder as a “Revolving that Defaulting Lender” except as to its obligations under Section 8.4(b) and Section 9.1 shall continue with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Revolving Lender” hereunder, ; provided that, any (i) each such termination will not reallocation shall be deemed to be given effect only if, at the date the applicable Lender becomes a waiver or release of any claim that the Borrower, the Administrative Agent, the Swingline Defaulting Lender, no Default or Event of Default exists; and (ii) the Issuing Lender or any Lender may have against such Defaulting Lender. Notwithstanding anything herein to the contrary, the Non-Defaulting Lenders’ option to take an assignment as provided in Section 2.1(b)(ii)(B) may be exercised by a Non-Defaulting Lender in its sole and absolute discretion and nothing contained herein shall obligate any Nonaggregate obligation of each non-Defaulting Lender to take any acquire, refinance or fund participations in Letters of Credit shall not exceed the positive difference, if any, of (1) the Revolving Credit Commitment of that non-Defaulting Lender minus (2) the aggregate Revolving Extensions of Credit of such assignmentnon-Defaulting Lender.
Appears in 2 contracts
Sources: Credit Agreement (Hudson Pacific Properties, Inc.), Credit Agreement (Hudson Pacific Properties, Inc.)
Defaulting Lender. At 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) fees shall cease to accrue on the unfunded portion of any Commitment of such Defaulting Lender pursuant to this Agreement;
(b) the Commitments and Revolving Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided, that in the case of an amendment, waiver or other modification requiring the consent of all Lenders or of each Lender affected thereby, the Defaulting Lender’s consent shall be only be required with respect to (i) a proposed increase or extension of such Defaulting Lender’s Commitments and (ii) a proposed reduction or excuse, or a proposed postponement of the 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 when a Lender becomes a Defaulting Lender then:
(i) all or any part of 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 that such reallocation does not, as to any non-Defaulting Lender, cause such non-Defaulting Lender’s Revolving Exposure to exceed its Commitment and (y) if the condition set forth in Section 4.03 are satisfied at that time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one (1) Business Day following notice by the Administrative 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(j) for so long as such LC Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to this Section 2.20(c), the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 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 2.20(c), then the fees payable to the Lenders pursuant to Section 2.11 shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither cash collateralized nor reallocated pursuant to this Section 2.20(c), then, without prejudice to any rights or remedies of the Issuing Bank or any Lender hereunder, all fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitments that were utilized by such LC Exposure and any applicable letter of credit fees) with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing 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 BorrowerIssuing Bank shall not be required to issue, at amend or increase any Letter of Credit, unless it is satisfied that the Borrower’s election, may elect to terminate such related exposure and each Defaulting Lender’s Commitment hereunder; provided that (A) such termination must then outstanding LC Exposure will be 100% covered by the Revolving Commitments of the Defaulting Lender’s entire Commitment, (B) the Nonnon-Defaulting Lenders shall each have and/or cash collateral will be provided by the option to accept an assignment of the Defaulting Lender’s Commitment pursuant to Borrower in accordance with Section 2.15 in lieu of a termination of Commitments pursuant to this Section 2.1(b)(ii2.20(c), (C) and LC Exposure related to the extent that the Nonany newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders do in a manner consistent with Section 2.20(c)(i) (and Defaulting Lenders shall not take an assignment participate therein). If (i) a Bankruptcy Event with respect to any Lender Parent shall occur following the date hereof and for so long as provided such event shall continue or (ii) the Issuing Bank has a good faith belief that any Lender has defaulted in the immediately preceding clause (B)fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, 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 2.17(a)(iii)), and letter of credit fees (subject to Section 2.17(a)(iii)) but specifically excluding any amounts owing under Section 2.11 as result of such payment of such Advances) and shall deposit with 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 2.17), (D) a Defaulting Lender’s Commitment may be terminated by the 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 Issuing Bank shall not be permitted if a Default has occurred and is continuing at required to issue, amend or increase any Letter of Credit, unless the time Issuing Bank shall have entered into arrangements with the Borrower or such Lender, satisfactory to the Issuing Bank to defease any risk to it in respect of such election and terminationLender hereunder. Upon written notice to In 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 event 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 Commitment shall be deemed terminated, and (3) such Defaulting Lender shall be relieved of its obligations hereunder as a “Revolving Lender” except as to its obligations under Section 8.4(b) and Section 9.1 shall continue with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Revolving Lender” 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 Swingline Borrower and the Issuing Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Issuing LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Revolving Commitment and on such date such Lender or any Lender may have against shall purchase at par such Defaulting Lender. Notwithstanding anything herein to of the contrary, Loans of the Non-Defaulting Lenders’ option to take an assignment other Lenders as provided in Section 2.1(b)(ii)(B) the Administrative Agent shall determine may be exercised by a Non-Defaulting Lender necessary in its sole and absolute discretion and nothing contained herein shall obligate any Non-Defaulting order for such Lender to take any hold such assignmentLoans 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. At any time when a Lender is then a Defaulting LenderLender and so long as no Default exists at such time, the Borrower, at the Borrower’s election, election may elect to terminate such Defaulting Lender’s Revolving Commitment hereunder; provided that (A) such termination must be of the Defaulting Lender’s entire Revolving Commitment, (B) the Non-Defaulting Lenders shall each have the option to accept an assignment of the Defaulting Lender’s Commitment pursuant to Section 2.15 in lieu of a termination of Commitments pursuant to this Section 2.1(b)(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 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 commitment fees (subject to Section 2.17(a)(iii2.7(a)), and letter of credit fees (subject to Section 2.17(a)(iii)) but specifically excluding any amounts owing under Section 2.11 2.10 as result of such payment of such Revolving 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 2.17)Exposure, (DC) a Defaulting Lender’s Revolving Commitment may be terminated by the Borrower under this Section 2.1(b)(ii2.1(c)(iii) if and only if at such time, the Borrower has elected, or is then electing, to terminate the Revolving 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 Revolving Commitment pursuant to this clause (iiiii) and the payment and deposit of amounts required to be made by the Borrower under clause (B) and (C) above, (1A) 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 2.122.11, 2.142.13, 8.4 8.5 and 9.1 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 events and occurrences occurring before or concurrently with its ceasing to be a “Revolving Lender” hereunder, (2B) such Defaulting Lender’s Revolving Commitment shall be deemed terminated, and (3C) such Defaulting Lender shall be relieved of its obligations hereunder as a “Revolving Lender” except other than as to its obligations under Section 8.4(bdescribed in clause (A) and Section 9.1 shall continue with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Revolving Lender” 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 Swingline Lender, the Issuing Lender or any Lender may have against such Defaulting Lenderabove. Notwithstanding anything herein to the contrary, the Non-Defaulting Lenders’ option to take an assignment as termination of commitments, rights and obligations provided for in Section 2.1(b)(ii)(Bthis clause (iii) shall not affect rights and obligations that a Lender may be exercised by a Non-Defaulting Lender have in its sole and absolute discretion and nothing contained herein shall obligate any Non-Defaulting Lender to take any such assignmentcapacity as a Term Lender.
Appears in 2 contracts
Sources: Credit Agreement (Flotek Industries Inc/Cn/), Credit Agreement (Flotek Industries Inc/Cn/)
Defaulting Lender. At If any time when a Lender is then becomes a Defaulting Lender, then the Borrower, at the Borrower’s election, may elect to terminate following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) such Defaulting Lender’s Revolving Commitment hereunder; provided that (A) such termination must and outstanding Revolving Loans shall be excluded for purposes of calculating the fee payable to 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 entire Commitment, Revolving Commitment or Revolving Loans (B) the Nonin each case not including any fee in connection with any portion of such Defaulting Lenders Revolving Commitment that has been reallocated to non-Defaulting Lenders shall each have the option to accept an assignment of the Defaulting Lender’s Commitment pursuant to Section 2.15 10.21(d) hereof).
(b) the Revolving Commitments and Loans of such Defaulting Lender shall not be included in lieu of a termination of Commitments determining whether all Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to this Section 2.1(b)(ii10.5), .
(Cc) to the extent that the Non-Defaulting Lenders do not take an assignment as provided in the immediately preceding clause (B)event a Defaulting Lender has defaulted on its obligation to fund any Revolving Loan, or purchase any participation pursuant to Section 1.5 hereof, until such time as the Borrower shall pay all amounts owed by the Borrower Default Excess with respect 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 has been reduced to zero, any prepayments or repayments on account of and interest on the Revolving Advances owed Loans or participations pursuant to Section 1.5, in each case to the extent they would be otherwise be payable to such Defaulting Lender, accrued Commitment Fees (subject shall be applied first, to Section 2.17(a)(iii)), and letter the payment of credit fees (subject to Section 2.17(a)(iii)) but specifically excluding any amounts owing under Section 2.11 as result by such Defaulting Lender to Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such payment Defaulting Lender to the Issuing Bank or Letter of such Advances) and shall deposit with the Administrative Agent into the Cash Collateral Account Credit guarantor/indemnitor hereunder; third, to provide cash collateral in the amount equal of 103% of the Issuing Bank’s (or the Letter of Credit guarantor/indemnitor’s, as the case may be) Fronting Exposure with respect to such Defaulting Lender; fourth, as the Borrowers 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 Agent; fifth, if so determined by Agent and the Borrowers, to be held in a deposit account 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) 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; sixth, to the payment of any amounts owing to the Lenders, the Issuing Bank or the Letter of Credit guarantor/indemnitor as a result of any judgment of a court of competent jurisdiction obtained by any Lender, the Issuing Bank or 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, so 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 eighth, to such 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 Letter of Credit Balance in respect of which such Defaulting Lender has not fully funded its appropriate share and (y) such Loans or Letter of Credit Balance were made at a time when the conditions set forth in Section 1.6 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and Letter of Credit Balance owed to, all non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or 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 ratable share 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 Exposure (including Balance pursuant to this Section 10.21(d), the Borrowers shall not be required to pay any such Letter of Credit Exposure that has been reallocated pursuant Fees to Section 2.17), (D) a Defaulting Lender’s Commitment may be terminated by the 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) the portion of such Defaulting Lender’s Commitment shall be deemed terminated, Pro Rata Share of the Letter of Credit Balance which have been cash collateralized (and (3) such the Defaulting Lender shall not be relieved entitled to receive any such fees);
(iv) if the Defaulting ▇▇▇▇▇▇’s Pro Rata Share of its obligations 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 as a “Revolving Lender” except as to its obligations under Section 8.4(b) and Section 9.1 shall continue with respect to events 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 occurrences occurring before or concurrently with its ceasing to be a “Revolving Lender” hereunder, provided that, participating interests in any such termination will 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 be deemed participate therein).
(f) No reallocation permitted pursuant to be 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 Borrower, the Administrative event that Agent, the Swingline Issuing Bank and the Letter of Credit guarantor/indemnitor each agrees in writing that a Defaulting Lender has adequately remedied all matters which caused such Lender to become a Defaulting Lender, then the Pro Rata Shares of the Letter of Credit Balance of the Lenders shall be readjusted to reflect the inclusion of such ▇▇▇▇▇▇’s Revolving Commitment and on such date such Lender shall purchase at par such of the Revolving Loans of the other Lenders or participations in the Revolving Loans as Agent shall determine may be necessary in order for such Lender to hold such Revolving Loans or participations in accordance with its 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 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 Lender Bank or any Lender the Letter of Credit guarantor/indemnitor, as applicable, may have against such Defaulting Lender. Notwithstanding anything herein to the contrary, the Non-Defaulting Lenders’ option to take an assignment as provided in Section 2.1(b)(ii)(B) may be exercised by a Non-Defaulting Lender in its sole and absolute discretion and nothing contained herein shall obligate any Non-Defaulting Lender to take any such assignment.
Appears in 2 contracts
Sources: Loan and Security Agreement (SkyWater Technology, Inc), Loan and Security Agreement (SkyWater Technology, Inc)
Defaulting Lender. At any 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 hereunderhereunder 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 2.15 2.13 in lieu of a termination of Commitments pursuant to this Section 2.1(b)(ii2.1(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 2.17(a)(iii2.6(a)), and letter of credit fees (subject to Section 2.17(a)(iii)) but specifically excluding any amounts owing under Section 2.11 2.9 as result of such payment 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 (including other than any such Letter of Credit Exposure that has been reallocated pursuant to Section 2.172.14), (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(b)(ii2.1(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 (EF) such termination shall not be permitted if a an Event of Default has occurred and is continuing at the time of such election and terminationcontinuing. Upon written notice to the Defaulting Lender and the Administrative Agent of the Borrower’s election to terminate a Defaulting Lender’s Revolving Commitment and CapEx Commitment pursuant to this clause (iiiii) 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 “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, 2.14, 8.4 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 8.4(b) and Section 9.1 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 Swingline Swing Line Lender, the Issuing Lender or any Lender may have against such Defaulting Lender. Notwithstanding anything herein to the contrary, (x) 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 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 Revolving Commitment pursuant to this clause (iii) must occur concurrently with a termination of such Defaulting Lender’s unused CapEx Commitment, if any. Notwithstanding anything herein to the contrary, the Non-Defaulting Lenders’ option to take an assignment as provided in Section 2.1(b)(ii)(B2.1(c)(iii)(B) may be exercised by a Non-Defaulting Lender in its sole and absolute discretion and nothing contained herein shall obligate any Non-Defaulting Lender to take any such assignment.
Appears in 2 contracts
Sources: Credit Agreement (Aly Energy Services, Inc.), Credit Agreement (Aly Energy Services, Inc.)
Defaulting Lender. At Notwithstanding any time when a provision of this Agreement to the contrary, if any Lender is then becomes a Defaulting Lender, then the Borrower, at following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) The Commitment Fee shall cease to accrue on the Borrower’s election, may elect to terminate unfunded portion of the Commitment of such Defaulting Lender’s Commitment hereunder; provided that ;
(Ab) such termination must be of the 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 2.15 in lieu of a termination of Commitments pursuant to this Section 2.1(b)(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 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 2.17(a)(iii)), and letter of credit fees (subject to Section 2.17(a)(iii)) but specifically excluding any amounts owing under Section 2.11 as result of such payment of such Advances) and shall deposit with 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 The Credit Exposure (including any such Letter and Available Commitment of Credit Exposure that has been reallocated pursuant to Section 2.17), (D) a Defaulting Lender’s Commitment may be terminated by the 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 not be included in determining whether the Required Lenders have taken or may take any action hereunder (including any consent to be a “Revolving Lender” hereunder for all purposes except that such Lender’s rights and obligations as a Revolving Lender under Sections 2.12any amendment, 2.14, 8.4 and 9.1 shall continue with respect waiver or other modification pursuant to events and occurrences occurring before or concurrently with its ceasing to be a “Revolving Lender” hereunderSection 9.1); provided, (2i) such Defaulting Lender’s Commitment shall may not be deemed terminated, increased or extended without its consent and (3ii) the principal amount of, or interest payable on, Loans of such Defaulting Lender may not be reduced or excused or the scheduled date of payment may not be postponed as to such Defaulting Lender without such Defaulting Lender’s consent;
(c) If any 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 Defaulting Lender shall be relieved reallocated among the non-Defaulting Lenders in accordance with their respective Commitment Percentages, provided that such reallocation does not cause the aggregate Credit Exposure of any non-Defaulting Lender to exceed its obligations hereunder Commitment; and
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the applicable Borrowers shall, within two Business Days following notice by the Administrative Agent, prepay such Swing Line Exposure;
(d) so long as such Lender is a “Revolving Defaulting Lender” except , no Swing Line Lender shall be required to fund any Swing Line Loan unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Lenders, and participating interests in any newly made Swing Line Loan shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.18(c)(i) (and such Defaulting Lender shall not participate therein).
(e) If (i) a Bankruptcy Event with respect to a Lender Parent shall occur following the date hereof and for so long as to such event shall continue or (ii) a Swing Line Lender has a good faith belief that any Lender has defaulted in fulfilling its obligations under Section 8.4(b) and Section 9.1 one or more other agreements in which such Lender commits to extend credit, the Swing Line Lender shall continue with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Revolving Lender” hereunder, provided that, any such termination will not be deemed required to be a waiver fund any Swing Line Loan, unless the Swing Line Lender shall have entered into arrangements with the Borrower or release such Lender, satisfactory to the Swing Line Lender to defease any risk to it in respect of any claim such Lender hereunder.
(f) In the event that the Borrower, the Administrative Agent, the Swingline Borrowers and the Swing Line Lenders each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Issuing Swing Line Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender or any Lender may have against shall purchase at par such Defaulting Lender. Notwithstanding anything herein to of the contrary, Loans of the Non-Defaulting Lenders’ option to take an assignment other Lenders as provided in Section 2.1(b)(ii)(B) the Administrative Agent shall determine may be exercised by a Non-Defaulting Lender necessary in its sole and absolute discretion and nothing contained herein shall obligate any Non-Defaulting order for such Lender to take any hold such assignmentLoans in accordance with its 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. At any 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 hereunderhereunder 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 2.15 2.13 in lieu of a termination of Commitments pursuant to this Section 2.1(b)(ii2.1(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 2.17(a)(iii2.6(a)), and letter of credit fees (subject to Section 2.17(a)(iii)) but specifically excluding any amounts owing under Section 2.11 2.9 as result of such payment 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 (including other than any such Letter of Credit Exposure that has been reallocated pursuant to Section 2.172.14), (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(b)(ii2.1(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 (EF) such termination shall not be permitted if a an Event of Default has occurred and is continuing at the time of such election and terminationcontinuing. Upon written notice to the Defaulting Lender and the Administrative Agent of the Borrower’s election to terminate a Defaulting Lender’s Revolving Commitment and Term Commitment pursuant to this clause (iiiii) 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, 2.14, 8.4 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 8.4(b) and Section 9.1 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 Swingline Swing Line Lender, the Issuing Lender or any Lender may have against such Defaulting Lender. Notwithstanding anything herein to the contrary, (x) if no Term 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 Term Lender and (y) any termination of a Defaulting Lender’s Revolving Commitment pursuant to this clause (iii) must occur concurrently with a termination of such Defaulting Lender’s Term Commitments. Notwithstanding anything herein to the contrary, the Non-Defaulting Lenders’ option to take an assignment as provided in Section 2.1(b)(ii)(B2.1(c)(iii)(B) may be exercised by a Non-Defaulting Lender in its sole and absolute discretion and nothing contained herein shall obligate any Non-Defaulting Lender to take any such assignment.
Appears in 2 contracts
Sources: Credit Agreement (Aly Energy Services, Inc.), Credit Agreement (Aly Energy Services, Inc.)
Defaulting Lender. At any time when a Lender is then a Defaulting Lender, the Borrower, at the Borrower’s election, may elect to terminate such Defaulting Lender’s Commitment hereunder; provided that (A) such termination must be of the 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 2.15 2.13 in lieu of a termination of Commitments pursuant to this Section 2.1(b)(ii2.1(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 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 2.17(a)(iii2.6(a)), and letter of credit fees (subject to Section 2.17(a)(iii)) but specifically excluding any amounts owing under Section 2.11 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 but only to the extent such Letter of Credit Exposure that has not been reallocated pursuant to Section 2.172.14), and (DC) a Defaulting Lender’s Commitment may be terminated by the Borrower under this Section 2.1(b)(ii2.1(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 (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 (iiiii) 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 2.10, 2.12, 2.14, 8.4 8.5 and 9.1 9.2 shall continue with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Revolving Lender” ”, as applicable, hereunder, (2) such Defaulting Lender’s Commitment shall be deemed terminated, and (3) such Defaulting Lender shall be relieved of its obligations hereunder as a “Revolving Lender” except as to its obligations under Section 8.4(b) and Section 9.1 8.5 shall continue with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Revolving 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 Swingline Swing Line Lender, the any Issuing Lender or any Lender may have against such Defaulting Lender. Notwithstanding anything herein to the contrary, the Non-Defaulting Lenders’ option to take an assignment as provided in Section 2.1(b)(ii)(B2.1(c)(ii)(B) may be exercised by a Non-Defaulting Lender in its sole and absolute discretion and nothing contained herein shall obligate any Non-Defaulting Lender to take any such assignment.
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. At any 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; provided that (A) such termination must be of the Defaulting Lender’s entire Revolving Commitment, (B) the Non-Defaulting Lenders shall each have the option to accept an assignment of the Defaulting Lender’s Commitment pursuant to Section 2.15 in lieu of a termination of Commitments pursuant to this Section 2.1(b)(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 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 the proviso Section 2.17(a)(iii2.7(a)), and letter of credit fees (subject to Section 2.17(a)(iii)) but specifically excluding any amounts owing under Section 2.11 2.10 as result of such payment of such Revolving 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 Dollar Equivalent of the Letter of Credit Exposure (including after giving effect to any such Letter of Credit Exposure that has been reallocated reallocation pursuant to Section 2.172.16), and (DC) a Defaulting Lender’s Revolving Commitment may be terminated by the Borrower under this Section 2.1(b)(ii2.1(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, Lenders and (Ey) such termination shall not be permitted if a no Default has occurred and is continuing at the time of such election and terminationcontinuing. Upon written notice to the Defaulting Lender and the 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 Lender’s rights and obligations as a Revolving Lender under Sections 2.122.11, 2.142.13, 8.4 8.5 and 9.1 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 Revolving Commitment shall be deemed terminated, and (3) such Defaulting Lender shall be relieved of its obligations hereunder as a “Revolving Lender” except as to its obligations under Section 8.4(b) 8.5 and Section 9.1 9.2(d) which obligations shall continue with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Revolving Lender” hereunder, provided that, any such termination will not be deemed to be a waiver or release of any claim that by the Borrower, the Administrative Agent, the Swingline Swing Line Lender, the Issuing Lender Lenders or any Lender may have against such Defaulting Lender. Notwithstanding anything herein to the contrary, the Non-Defaulting Lenders’ option to take an assignment as provided in Section 2.1(b)(ii)(B) may be exercised by a Non-Defaulting Lender in its sole and absolute discretion and nothing contained herein shall obligate any Non-Defaulting Lender to take any such assignment.
Appears in 2 contracts
Sources: Credit Agreement (Forum Energy Technologies, Inc.), Credit Agreement (Forum Energy Technologies, Inc.)
Defaulting Lender. At Notwithstanding any time when a provisions of this Agreement to the contrary, if any Lender is then becomes a Defaulting Lender, then the Borrowerfollowing provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) Fees shall cease to accrue on the unfunded portion of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(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 Commitment and the LC Exposure of such Defaulting Lender shall not be included in determining whether all 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 9.02); provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender 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 BorrowerAdministrative 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 electionbreach of its obligations under this Agreement; seventh, may elect so long as no Default or Event of Default exists, to terminate 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 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 the sum of all non-Defaulting Lenders’ Revolving Exposures plus 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’ Commitments; or
(ii) if the reallocation described in paragraph (i) above cannot, or can only partially, be effected, the Borrowers shall, without prejudice to any other right or remedy available to them hereunder or under law, within two Business Days following notice by the Administrative Agent, Cash collateralize 100.0% of such Defaulting Lender’s Commitment hereunder; 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 paragraph (i) above and any Cash collateral provided that by the Defaulting Lender) or make other arrangements reasonably satisfactory to the Administrative Agent and to the applicable Issuing Bank and/or Swingline Lender with respect to such LC Exposure and obligations to fund participations. Cash collateral (or the appropriate portion thereof) provided to reduce LC Exposure or other obligations shall be released promptly following (A) such termination must be the elimination of the applicable LC Exposure or other obligations giving rise thereto (including by the termination of Defaulting Lender’s entire CommitmentLender status of the applicable Lender (or, as appropriate, its assignee following compliance with Section 2.19)) or (B) the NonAdministrative Agent’s good faith determination that there exists excess Cash collateral.
(iii) if the LC Exposure of the non-Defaulting 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 are reallocated pursuant to this Section 2.1(b)(ii2.22(d), (C) then the fees payable to the extent that Lenders pursuant to Sections 2.12(a) and (b), as the Noncase may be, shall be adjusted in accordance with such non-Defaulting Lenders do not take an assignment as provided in the immediately preceding clause Lenders’ Applicable Percentages; or
(B), the Borrower shall pay all amounts owed by the Borrower to such Defaulting Lender in such iv) if any Defaulting Lender’s capacity as a Revolving Lender under LC Exposure is not Cash collateralized, prepaid or reallocated pursuant to 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 2.17(a)(iii)2.22(d), and then, without prejudice to any rights or remedies of the applicable Issuing Bank or any Lender hereunder, all letter of credit fees (subject to Section 2.17(a)(iii)) but specifically excluding any amounts owing payable under Section 2.11 as result of such payment of such Advances2.12(b) and shall deposit with the Administrative Agent into the Cash Collateral Account cash collateral in the amount equal respect to such Defaulting Lender’s ratable share of the Letter of Credit LC Exposure (including any such Letter of Credit Exposure that has been reallocated pursuant to Section 2.17), (D) a Defaulting Lender’s Commitment may shall be terminated by the 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 payable 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) applicable Issuing Bank until such Defaulting Lender’s Commitment LC Exposure is Cash collateralized.
(e) So long as any Lender is Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be deemed terminatedrequired to issue, extend, create, incur, amend or increase any Letter of Credit unless it is reasonably satisfied that the related exposure will be 100.0% covered by the Commitments of the non-Defaulting Lenders and/or Cash collateral will be provided by the Borrowers in accordance with Section 2.22(d), and participating interests in any such newly issued, extended or created Letter of Credit or newly made Swingline Loan shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.22(d)(i) (3and Defaulting Lenders shall not participate therein).
(f) such In the event that the Administrative Agent, the Borrowers, the Issuing Banks and the 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 relieved readjusted to reflect the inclusion of its obligations hereunder as a “such Lender’s ABL Revolving Lender” except as to its obligations under Section 8.4(bCommitment (if any) and Section 9.1 on such date such Lender shall continue 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 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 events fees accrued or payments made by or on behalf of the Borrowers while that Lender was a Defaulting Lender; and occurrences occurring before or concurrently with its ceasing provided, further, that except to be a “Revolving Lender” hereunderthe extent otherwise expressly agreed by the affected parties, provided that, any such termination no change hereunder from Defaulting Lender to Lender will not be deemed to be constitute a waiver or release of any claim of any party hereunder arising from that the Borrower, the Administrative Agent, the Swingline Lender, the Issuing Lender or any Lender may have against such ’s having been a Defaulting Lender. Notwithstanding anything herein to the contrary, the Non-Defaulting Lenders’ option to take an assignment as provided in Section 2.1(b)(ii)(B) may be exercised by a Non-Defaulting Lender in its sole and absolute discretion and nothing contained herein shall obligate any Non-Defaulting Lender to take any such assignment.
Appears in 2 contracts
Sources: Abl Credit Agreement (Party City Holdco Inc.), Abl Credit Agreement (Party City Holdco Inc.)
Defaulting Lender. At Notwithstanding any time when 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) fees shall cease to accrue on the Revolving Loan Commitment of such Defaulting Lender pursuant to Section 2.14(c)(i);
(b) the Commitments, Loans and other Revolving Credit Obligations of such Defaulting Lender shall not be included in determining whether the Required Lenders or Required Pro Rata Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 9.03); provided that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender affected thereby;
(c) if any 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 Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Pro Rata Shares of the Revolving Facility but only to the extent the sum of all non-Defaulting Lenders’ Revolving Credit Obligations plus such Defaulting Lender’s Swing Line Obligations and L/C Obligations does not exceed the total of all non-Defaulting Lenders’ Revolving Loan Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one (1) Business Day following notice by the 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 L/C Obligations (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 3.11 for so long as such L/C Obligations are outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s L/C Obligations pursuant to clause (ii) above, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 3.08 with respect to such Defaulting Lender’s L/C Obligations during the period such Defaulting Lender’s L/C Obligations are cash collateralized;
(iv) if the L/C Obligations of the non-Defaulting Lenders are reallocated pursuant to clause (i) above, then the fees payable to the Revolving Lenders pursuant to Section 3.08 shall be adjusted in accordance with such non-Defaulting Lenders’ Pro Rata Shares of the Revolving Facility; and
(v) if all or any portion of such Defaulting Lender’s L/C Obligations are neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other 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 Revolving Loan Commitment that was utilized by such L/C Obligations) and letter of credit fees payable under Section 3.08 with respect to such Defaulting Lender’s L/C Obligations shall be payable to such Issuing Bank until and to the extent that such L/C Obligations are reallocated and/or cash collateralized; and
(d) so long as such Lender is a Defaulting Lender, the BorrowerSwing Line Bank shall not be required to fund any Swing Line Loan and no Issuing Bank shall be required to issue, at amend or increase any Letter of Credit, unless it is satisfied that the Borrower’s election, may elect to terminate such Defaulting Lender’s Commitment hereunder; provided that (A) such termination must be of related exposure and the Defaulting Lender’s entire Commitment, (B) then outstanding L/C Obligations will be 100.0% covered by the NonRevolving Loan Commitments of the non-Defaulting Lenders shall each have and/or cash collateral will be provided by the option to accept an assignment of the Defaulting Lender’s Commitment pursuant to Section 2.15 Borrower in lieu of a termination of Commitments pursuant to this Section 2.1(b)(iiaccordance with Section 9.02(c), (C) to the extent that the Nonand participating interests in any such newly made Swing Line Loan or any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders do not take an assignment as provided in the immediately preceding clause a manner consistent with Section 9.02(c)(i) (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 2.17(a)(iii)), and letter of credit fees (subject to Section 2.17(a)(iii)) but specifically excluding any amounts owing under Section 2.11 as result of such payment of such Advances) and shall deposit with 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 2.17), (D) a Defaulting Lender’s Commitment may be terminated by the 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 not participate therein). If (i) 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 Bankruptcy Event with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Revolving Lender” hereunder, (2) such Defaulting Lender’s Commitment shall be deemed terminated, and (3) such Defaulting parent of any Lender shall be relieved of its obligations hereunder occur following the Escrow Date and for so long as such event shall continue or (ii) the Swing Line Bank or any Issuing Bank has a “Revolving Lender” except as to good faith belief that any Lender has defaulted in fulfilling its obligations under Section 8.4(b) and Section 9.1 one or more other agreements in which such Lender commits to extend credit, the Swing Line Bank shall continue with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Revolving Lender” hereunder, provided that, any such termination will not be deemed required to fund any Swing Line Loan and such Issuing Bank shall not be a waiver required to issue, amend or release increase any Letter of Credit, unless 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 defease any claim risk to it in respect of such Lender hereunder. In the event that the Borrower, the Administrative Agent, the Swingline Borrower, the Swing Line Bank and the Issuing Banks each agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Issuing Swing Line Obligations and L/C Obligations of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Revolving Loan Commitment and on such date such Lender or any Lender may have against shall purchase at par such Defaulting Lender. Notwithstanding anything herein to of the contrary, Revolving Loans of the Non-Defaulting Lenders’ option to take an assignment other Revolving Lenders (other than Swing Line Loans) as provided in Section 2.1(b)(ii)(B) the Administrative Agent shall determine may be exercised by a Non-Defaulting Lender necessary in its sole and absolute discretion and nothing contained herein shall obligate any Non-Defaulting order for such Lender to take any hold such assignmentLoans in accordance with its Pro 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. At any time when a Lender is then a Defaulting Lender, the Applicable Borrower, at the such 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 entire CommitmentCommitments, (B) the Non-Defaulting 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 pursuant to this Section 2.1(b)(ii), (C) to the extent that the Non-Defaulting Lenders do not take an assignment as provided in the immediately preceding clause (B), the Applicable Borrower shall pay all amounts owed by the Applicable 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 2.17(a)(iii2.18(a)(iii)), and letter of credit fees (subject to Section 2.17(a)(iii)2.18(a)(iii) but specifically excluding any amounts owing under Section 2.11 2.12 as result of such payment of such Advances) and shall deposit with the Applicable Administrative Agent into the Cash Collateral Account cash collateral in the amount equal to such Defaulting Lender’s ratable share of the Dollar Equivalent of the Letter of Credit Exposure (including any such Letter of Credit Exposure portion thereof that has been reallocated pursuant to Section 2.172.18), (DC) a Defaulting Lender’s Commitment Commitments may be terminated by the Applicable Borrower under this Section 2.1(b)(ii2.1(d) if and only if at such time, the such Borrower has elected, or is then electing, to terminate the Commitments of all then existing Defaulting Lenders, and (ED) such termination shall not be permitted if a no Default has occurred and is continuing at the time of such election and termination. Upon written notice to the Defaulting Lender and the Applicable Administrative Agent of the Applicable Borrower’s election to terminate a Defaulting Lender’s Commitment Commitments pursuant to this clause (iiiii) 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 “Revolving Lender” hereunder for all purposes except that such Lender’s rights and obligations as a Revolving Lender under Sections 2.12Section 2.11, 2.14Section 2.13, 8.4 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 “Revolving Lender” hereunder, (2) such Defaulting Lender’s Commitment Commitments shall be deemed terminated, and (3) such Defaulting Lender shall be relieved of its obligations hereunder as a “Revolving Lender” except as to its obligations under Section 8.4(b) 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 “Revolving Lender” hereunder, provided that, any such termination will not be deemed to be a waiver or release of any claim that by the BorrowerBorrowers, the Administrative AgentAgents, the Swingline Lender, the Issuing Lender Lenders or any Lender may have against such Defaulting Lender. Notwithstanding anything herein to the contrary, the Non-Defaulting Lenders’ option to take an assignment as provided in Section 2.1(b)(ii)(B) may be exercised by a Non-Defaulting Lender in its sole and absolute discretion and nothing contained herein shall obligate any Non-Defaulting Lender to take any such assignment.
Appears in 2 contracts
Sources: Credit Agreement (Nine Energy Service, Inc.), Credit Agreement (Nine Energy Service, Inc.)
Defaulting Lender. At Notwithstanding any time when 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 Available Unused Commitment of such Defaulting Lender;
(b) Any Revolving Facility Commitment or any Revolving Facility Loan of such Defaulting Lender shall not be included in determining whether the Required Lenders, Required Tranche A Lenders, Required Tranche B Lenders or Super Majority Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 9.08); provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender under Section 9.04(a)(i) or subclauses (i), through (ix) of the first proviso to Section 9.08(b);
(c) If any 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 Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Revolving Facility Percentages of Tranche A Revolving Facility Commitments but only to the extent the sum of all non-Defaulting Lenders’ Tranche A Revolving Facility Exposure plus such Defaulting Lender’s Swingline Exposure and Revolving L/C Exposure does not exceed the total of all non-Defaulting Lenders’ Tranche A Revolving Facility Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the applicable 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 applicable Issuing Bank only such Borrower’s obligations corresponding to such Defaulting Lender’s 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 2.05(j) for so long as such Revolving L/C Exposure is outstanding;
(iii) if any Borrower Cash Collateralizes any portion of such Defaulting Lender’s Revolving L/C Exposure pursuant to subclause (ii) above, such Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.12 with respect to such Defaulting Lender’s Revolving L/C Exposure during the period such Defaulting Lender’s Revolving L/C Exposure is Cash Collateralized;
(iv) if the Revolving L/C Exposure of the non-Defaulting Lenders is reallocated pursuant to subclause (i) above, then the fees payable to the Lenders pursuant to Section 2.12 shall be adjusted in accordance with such non-Defaulting Lenders’ Revolving Facility Percentages with respect to Tranche A Revolving Facility Commitments; and
(v) if all or any portion of such Defaulting Lender’s Revolving L/C Exposure is neither reallocated nor Cash Collateralized pursuant to subclause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all fees payable under Section 2.12 with respect to such Defaulting Lender’s Revolving L/C Exposure shall be payable to such Issuing Bank until and to the extent that such Revolving L/C Exposure is reallocated and/or Cash Collateralized; and
(d) So long as such Lender is a Defaulting Lender, the BorrowerSwingline Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, at amend or increase any Letter of Credit, unless it is satisfied that the Borrower’s election, may elect to terminate such Defaulting Lender’s Commitment hereunder; provided that (A) such termination must be of related exposure and the Defaulting Lender’s entire Commitment, (B) then outstanding Revolving L/C Exposure will be 100% covered by the NonTranche A Revolving Facility Commitments of the non-Defaulting Lenders shall each have and/or Cash Collateral will be provided by the option to accept an assignment of the Defaulting Lender’s Commitment pursuant to Borrower in accordance with Section 2.15 in lieu of a termination of Commitments pursuant to this Section 2.1(b)(ii2.21(c), (C) to the extent that the Nonand participating interests in any newly made Swingline Loan or any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders do not take an assignment as provided in the immediately preceding clause a manner consistent with Section 2.21(c)(i) (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 2.17(a)(iii)), and letter of credit fees (subject to Section 2.17(a)(iii)) but specifically excluding any amounts owing under Section 2.11 as result of such payment of such Advances) and shall deposit with 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 2.17), (D) a Defaulting Lender’s Commitment may be terminated by the 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 not participate therein).
(e) In the event 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 Commitment shall be deemed terminated, and (3) such Defaulting Lender shall be relieved of its obligations hereunder as a “Revolving Lender” except as to its obligations under Section 8.4(b) and Section 9.1 shall continue with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Revolving Lender” 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 Borrowers, the Swingline Lender and the Issuing Banks 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 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 (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 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 9.06 shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Issuing Bank or the Swingline Lender hereunder; third, to Cash Collateralize the Revolving L/C Exposure of such Defaulting Lender in 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; fifth, to be held in a deposit account 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 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, the Issuing Banks or the Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, the Issuing Banks or the Swingline Lender or any Lender may have against such Defaulting Lender as a result of such Defaulting Lender. Notwithstanding anything herein ’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default exists, to the contrarypayment of any amounts owing to the applicable Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, the Non-to such Defaulting Lenders’ option to take an assignment Lender or as provided in Section 2.1(b)(ii)(B) may be exercised otherwise directed by a Non-court of competent jurisdiction. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender in its sole and absolute discretion and nothing contained herein shall obligate any Non-that are applied (or held) to pay amounts owed by a Defaulting Lender or to take any post Cash Collateral pursuant to this Section 2.21 shall be deemed paid to and redirected by such assignmentDefaulting Lender, and each Lender irrevocably 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. At Notwithstanding any time when a provision of this Agreement to the contrary, if any Lender is then becomes a Defaulting Lender, then the Borrowerfollowing provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) fees shall cease to accrue on the Revolving Loan Commitment of such Defaulting Lender pursuant to Section 2.14(c)(i);
(b) the Commitments, Loans and other Revolving Credit Obligations of such Defaulting Lender shall not be included in determining whether the Required Lenders or Required Revolving Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 9.03); provided that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender affected thereby;
(c) if any L/C Obligations exist at the Borrower’s election, may elect time such Lender becomes a Defaulting Lender then:
(i) all or any part of the L/C Obligations of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Pro Rata Shares of the Revolving Facility but only to terminate the extent the sum of all non-Defaulting Lenders’ Revolving Credit Obligations plus such Defaulting Lender’s Commitment hereunder; provided that (A) such termination must be L/C Obligations do not exceed the total of the Defaulting Lender’s entire Commitment, (B) the Nonall non-Defaulting Lenders shall each have Lenders’ Revolving Loan Commitments;
(ii) if the option to accept an assignment of the Defaulting Lender’s Commitment pursuant to Section 2.15 reallocation described in lieu of a termination of Commitments pursuant to this Section 2.1(b)(ii), (C) to the extent that the Non-Defaulting Lenders do not take an assignment as provided in the immediately preceding clause (B)i) above cannot, or can only partially, be effected, the Borrower shall pay all amounts owed 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 L/C Obligations (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 3.11 for so long as such L/C Obligations are outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s L/C Obligations pursuant to clause (ii) above, the Borrower shall not be required to pay any fees to such Defaulting Lender in pursuant to Section 3.08 with respect to such Defaulting Lender’s capacity as a Revolving Lender under this Agreement and under L/C Obligations during the other Credit Documents period such Defaulting Lender’s L/C Obligations are cash collateralized;
(including principal iv) if the L/C Obligations of and interest on the non-Defaulting Lenders are reallocated pursuant to clause (i) above, then the fees payable to the Revolving Advances owed Lenders pursuant to Section 3.08 shall be adjusted in accordance with such non-Defaulting Lenders’ Pro Rata Shares of the Revolving Facility; and
(v) if all or any portion of such Defaulting Lender’s L/C Obligations are neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other 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, accrued ’s Revolving Loan Commitment Fees (subject to Section 2.17(a)(iii)), that was utilized by such L/C Obligations) and letter of credit fees (subject to Section 2.17(a)(iii)) but specifically excluding any amounts owing payable under Section 2.11 as result of such payment of such Advances) and shall deposit 3.08 with the Administrative Agent into the Cash Collateral Account cash collateral in the amount equal respect to such Defaulting Lender’s ratable share L/C Obligations shall be payable to such Issuing Bank until and to the extent that such L/C Obligations are reallocated and/or cash collateralized; and
(d) so long as such Lender is a Defaulting Lender, no Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding L/C Obligations will be 100.0% covered by the Revolving Loan Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 9.02(c), and participating interests in any newly issued or increased Letter of Credit Exposure shall be allocated among non-Defaulting Lenders in a manner consistent with Section 9.02(c)(i) (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 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 not participate therein). If (i) 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 Bankruptcy Event with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Revolving Lender” hereunder, (2) such Defaulting Lender’s Commitment shall be deemed terminated, and (3) such Defaulting parent of any Lender shall be relieved of its obligations hereunder occur following the Closing Date and for so long as such event shall continue or (ii) any Issuing Bank has a “Revolving Lender” except as to good faith belief that any Lender has defaulted in fulfilling its obligations under Section 8.4(b) and Section 9.1 one or more other agreements in which such Lender commits to extend credit, such Issuing Bank shall continue with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Revolving Lender” hereunder, provided that, any such termination will not be deemed required to be a waiver issue, amend or release increase any Letter of Credit, unless 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 defease any claim risk to it in respect of such Lender hereunder. In the event that the Borrower, the Administrative Agent, the Swingline Borrower and the Issuing Banks each agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Issuing L/C Obligations of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Revolving Loan Commitment and on such date such Lender or any Lender may have against shall purchase at par such Defaulting Lender. Notwithstanding anything herein to of the contrary, Revolving Loans of the Non-Defaulting Lenders’ option to take an assignment other Revolving Lenders as provided in Section 2.1(b)(ii)(B) the Administrative Agent shall determine may be exercised by a Non-Defaulting Lender necessary in its sole and absolute discretion and nothing contained herein shall obligate any Non-Defaulting order for such Lender to take any hold such assignmentLoans in accordance with its Pro Rata Share of the Revolving Facility.
Appears in 2 contracts
Sources: Refinancing Amendment (Inovalon Holdings, Inc.), Credit Agreement (Inovalon Holdings, Inc.)
Defaulting Lender. At Notwithstanding any time when 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) fees shall cease to accrue on the Revolving Loan Commitment of such Defaulting Lender pursuant to Section 2.14(C)(i);
(B) the Revolving Loan Commitment and Revolving Credit Obligations of such Defaulting Lender shall not be included in determining whether the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 9.3); provided, that this clause (B) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender affected thereby;
(C) if any 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 Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Pro Rata Shares but only to the extent the sum of all non-Defaulting Lenders’ Revolving Credit Obligations plus such Defaulting Lender’s Swing Line Obligations and L/C Obligations does not exceed the total of all non-Defaulting Lenders’ Revolving Loan Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one (1) Business Day following notice by the 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 L/C Obligations (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 3.11 for so long as such L/C Obligations are outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s L/C Obligations pursuant to clause (ii) above, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 3.8 with respect to such Defaulting Lender’s L/C Obligations during the period such Defaulting Lender’s L/C Obligations are cash collateralized;
(iv) if the L/C Obligations of the non-Defaulting Lenders are reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Section 3.8 shall be adjusted in accordance with such non-Defaulting Lenders’ Pro Rata Shares; and
(v) if all or any portion of such Defaulting Lender’s L/C Obligations are neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all 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 L/C Obligations) and letter of credit fees payable under Section 3.8 with respect to such Defaulting Lender’s L/C Obligations shall be payable to such Issuing Bank until and to the extent that such L/C Obligations are reallocated and/or cash collateralized; and
(D) so long as such Lender is a Defaulting Lender, the BorrowerSwing Line Bank shall not be required to fund any Swing Line Loan and no Issuing Bank shall be required to issue, at amend or increase any Letter of Credit, unless it is satisfied that the Borrower’s election, may elect to terminate such Defaulting Lender’s Commitment hereunder; provided that (A) such termination must be of related exposure and the Defaulting Lender’s entire Commitment, (B) then outstanding L/C Obligations will be 100% covered by the NonRevolving Loan Commitments of the non-Defaulting Lenders shall each have and/or cash collateral will be provided by the option to accept an assignment of the Defaulting Lender’s Commitment pursuant to Borrower in accordance with Section 2.15 in lieu of a termination of Commitments pursuant to this Section 2.1(b)(ii9.2(C), (C) to the extent that the Nonand participating interests in any such newly made Swing Line Loan or any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders do not take an assignment as provided in the immediately preceding clause a manner consistent with Section 9.2(C)(i) (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 2.17(a)(iii)), and letter of credit fees (subject to Section 2.17(a)(iii)) but specifically excluding any amounts owing under Section 2.11 as result of such payment of such Advances) and shall deposit with 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 2.17), (D) a Defaulting Lender’s Commitment may be terminated by the 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 not participate therein). If (i) 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 Bankruptcy Event with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Revolving Lender” hereunder, (2) such Defaulting Lender’s Commitment shall be deemed terminated, and (3) such Defaulting Parent of any Lender shall be relieved of its obligations hereunder occur following the date hereof and for so long as such event shall continue or (ii) the Swing Line Bank or any Issuing Bank has a “Revolving Lender” except as to good faith belief that any Lender has defaulted in fulfilling its obligations under Section 8.4(b) and Section 9.1 one or more other agreements in which such Lender commits to extend credit, the Swing Line Bank shall continue with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Revolving Lender” hereunder, provided that, any such termination will not be deemed required to fund any Swing Line Loan and such Issuing Bank shall not be a waiver required to issue, amend or release increase any Letter of Credit, unless 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 defease any claim risk to it in respect of such Lender hereunder. In the event that the Borrower, the Administrative Agent, the Swingline Borrower, the Swing Line Bank and the Issuing Banks each agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Issuing Swing Line Obligations and L/C Obligations of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Revolving Loan Commitment and on such date such Lender or any Lender may have against shall purchase at par such Defaulting Lender. Notwithstanding anything herein to of the contrary, Loans of the Non-Defaulting Lenders’ option to take an assignment other Lenders (other than Swing Line Loans) as provided in Section 2.1(b)(ii)(B) the Administrative Agent shall determine may be exercised by a Non-Defaulting Lender necessary in its sole and absolute discretion and nothing contained herein shall obligate any Non-Defaulting order for such Lender to take any hold such assignmentLoans in accordance with its Pro Rata Share.
Appears in 1 contract
Sources: Revolving Credit Agreement (Energizer Holdings Inc)
Defaulting Lender. At 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) fees shall cease to accrue on the unfunded portion of any Commitment of such Defaulting Lender pursuant to this Agreement;
(b) the Commitments and Obligations of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 9.02), 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 when a Lender becomes a Defaulting Lender then:
(i) the 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 Exposure in accordance with the procedures set forth in Section 2.04(j) for so long as such LC Exposure is then outstanding;
(ii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to this Section 2.19(c), the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.10 with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iii) if any Defaulting Lender’s LC Exposure is not cash collateralized pursuant to this Section 2.19(c), then, without prejudice to any rights or remedies of the Issuing Bank or any Lender hereunder, all fees that otherwise would have been payable to such Defaulting Lender with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Bank until such LC Exposure is cash collateralized;
(d) so long as any Lender is a Defaulting Lender, the BorrowerSwingline Lender shall not be required to fund any Swingline Loan and the Issuing Bank shall not be required to issue, at the Borrower’s electionamend or increase any Letter of Credit, may elect to terminate such Defaulting Lender’s Commitment hereunderunless it is satisfied that cash collateral will be provided by Borrower in accordance with Section 2.19(c); provided that and
(Ae) such termination must be of the 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 2.15 in lieu of a termination of Commitments pursuant to this Section 2.1(b)(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 any amount payable to such Defaulting Lender in hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender’s capacity as a Revolving Lender under this Agreement and under the other Credit Documents (including principal pursuant to Section 2.16) shall, in lieu of and interest on the Revolving Advances owed being distributed to such Defaulting Lender, accrued Commitment Fees (be retained by the Administrative Agent in a segregated account and, subject to Section 2.17(a)(iii))any applicable requirements of law, and letter be applied at such time or times as may be determined by the Administrative Agent (i) first, to the payment of credit fees (subject to Section 2.17(a)(iii)) but specifically excluding any amounts owing under Section 2.11 as result of by such payment of such Advances) and shall deposit with Defaulting Lender to the Administrative Agent into hereunder, (ii) second, pro rata, to the Cash Collateral Account payment of any amounts owing by such Defaulting Lender to the Issuing Bank or Swingline Lender hereunder, (iii) third, 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, (iv) fourth, if so determined by the Administrative Agent and Borrower, held in such account as cash collateral in for future funding obligations of the amount equal Defaulting Lender under this Agreement, (v) fifth, pro rata, to the payment of any amounts owing to Borrower or the Lenders as a result of any judgment of a court of competent jurisdiction obtained by Borrower or any Lender against such Defaulting Lender as a result of such Defaulting Lender’s ratable share breach of the Letter of Credit Exposure (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 Borrower its obligations under this Section 2.1(b)(iiAgreement and (vi) if and only if at such time, the Borrower has elected, or is then electingsixth, 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 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 which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 4.02 are satisfied, such payment shall cease be applied solely to be a “Revolving Lender” hereunder for prepay the Loans of, and reimbursement obligations owed to, all purposes except that such Lender’s rights and the Lenders which are not Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations as a Revolving Lender under Sections 2.12owed to, 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 any Defaulting Lender’s Commitment shall be deemed terminated, and (3) such Defaulting Lender shall be relieved of its obligations hereunder as a “Revolving Lender” except as to its obligations under Section 8.4(b) and Section 9.1 shall continue with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Revolving Lender” hereunder, provided that, any such termination will not be deemed to be a waiver or release of any claim . In the event that the Borrower, the Administrative Agent, the Swingline LenderBorrower, the Issuing Bank and the Swingline Lender or any each agrees that a Defaulting Lender may have against has adequately remedied all matters that caused such Lender to be a Defaulting Lender. Notwithstanding anything herein , then the Swingline Exposure and LC Exposure of the Lenders shall be readjusted to reflect the contrary, inclusion of such Lender’s Commitment and on such date such Lender shall purchase at par such of the Non-Defaulting Lenders’ option to take an assignment Loans of the other Lenders (other than Swingline Loans) as provided in Section 2.1(b)(ii)(B) the Administrative Agent shall determine may be exercised by a Non-Defaulting Lender necessary in its sole and absolute discretion and nothing contained herein shall obligate any Non-Defaulting order for such Lender to take any hold such assignmentLoans in accordance with its Applicable Percentage.
Appears in 1 contract
Defaulting Lender. At 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) Facility Fees shall cease to accrue on the unfunded Commitment of such Defaulting Lender pursuant to Section 2.11;
(b) such Defaulting Lender and the Commitment and Extensions of Credit of such Defaulting Lender shall not be included in determining whether the Lenders, 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, consent, waiver or other modification pursuant to Section 10.1); provided, that this clause (b) shall not apply in the case of an amendment, waiver or other modification that has the effect of (i) increasing the amount or extending the expiration date of all or 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 L/C Obligations exist at the time 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 Defaulting Lender shall be reallocated among the Domestic Lenders that are not Defaulting Lenders in accordance with their respective Domestic Percentages (calculated without regard to such Defaulting Lender) but only to the extent the sum of all non-Defaulting Lenders’ Domestic Extensions of Credit 509265-1725-14038-Active.16362140 plus outstanding Domestic Competitive Loans plus such L/C Obligations does not exceed the total of all Domestic Lenders that are not Defaulting Lenders’ Domestic Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Company or any Domestic Subsidiary Borrower shall, at any time when a and from time to time following notice by the Administrative Agent, Collateralize for the benefit of each Issuing Lender that is then not, itself, a Defaulting Lender, the Borrower, at the Borrower’s election, may elect to terminate such Defaulting Lender’s Commitment hereunder; provided that (A) such termination must be of the 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 2.15 in lieu of a termination of Commitments pursuant to this Section 2.1(b)(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 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 2.17(a)(iii)), and letter of credit fees (subject to Section 2.17(a)(iii)) but specifically excluding any amounts owing under Section 2.11 as result of such payment of such Advances) and shall deposit with the Administrative Agent into the Cash Collateral Account cash collateral in the amount equal Borrowers’ obligations corresponding to such Defaulting Lender’s ratable share L/C Obligations (after giving effect to any partial reallocation pursuant to clause (i) above) for so long as such L/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 Letter 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 Credit Exposure Default shall have then occurred and be continuing);
(including iii) if the Company or any Subsidiary Borrower Collateralizes any portion of 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 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 L/C Obligations pursuant to this clause (ii) and above, neither the payment and deposit of amounts Company nor any relevant Subsidiary Borrower shall be required to be made by pay any fees to such Defaulting Lender pursuant to Section 3.3 with respect to such Defaulting Lender’s L/C Obligations during the Borrower under period and to the extent such Defaulting Lender’s L/C Obligations are so Collateralized;
(iv) if the L/C Obligations of the Defaulting Lenders are reallocated pursuant to clause (B) and (Ci) above, then the fees payable to the non-Defaulting Lenders pursuant to Section 2.11 and Section 3.3, as applicable, shall be adjusted in accordance with such non-Defaulting Lenders’ Domestic Percentages of the Domestic Commitments calculated without regard to such Defaulting Lender’s Domestic Percentage of the Domestic Commitments; and
(1v) if all or any portion of such Defaulting Lender’s L/C Obligations is neither reallocated nor Collateralized pursuant to 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 Letter of Credit Fees payable under Section 3.3 with respect to such Defaulting Lender’s L/C Obligations shall be payable to the applicable Issuing Lender until and to the extent that such L/C Obligations are so reallocated and/or Collateralized; and
(d) no Issuing Lender shall be required to issue, renew, 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 cease to be not participate therein). If (i) 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 Insolvency Event with respect to events the parent company of any Domestic Lender shall occur following the Closing Date and occurrences occurring before for so long as such event shall continue or concurrently with (ii) any 509265-1725-14038-Active.16362140 Domestic Lender has defaulted in fulfilling its ceasing obligations under one or more other agreements in which such Domestic Lender commits to be a “Revolving Lender” hereunderextend credit, (2) such Defaulting Lender’s Commitment shall be deemed terminated, and (3) such Defaulting no Issuing Lender shall be relieved required to issue, amend or increase any Letter of its obligations hereunder as Credit, unless such Issuing Lender shall have entered into arrangements with the Company or such Domestic Lender, satisfactory to such Issuing Lender, to defease any risk to it in respect of such Domestic Lender hereunder. In the event that a “Revolving Domestic Lender becomes a Defaulting Lender” except as , the Administrative Agent shall give notice to its obligations under Section 8.4(b) the Company and Section 9.1 shall continue with respect to events and occurrences occurring before or concurrently with its ceasing to be each affected Issuing Lender stating that such Domestic Lender has become a “Revolving Defaulting Lender” hereunder, provided that, any such termination will not be deemed to be a waiver or release . In the event that each of any claim that the Borrower, the Administrative Agent, the Swingline Company, each relevant Subsidiary Borrower and each affected Issuing Lender agrees that a Defaulting Lender has adequately remedied all matters that caused such Defaulting Lender to be a Defaulting Lender, then the Issuing Lender or any Lender may have against L/C Obligations of the Domestic Lenders shall be readjusted to reflect the inclusion of such Defaulting Lender. Notwithstanding anything herein to ’s Domestic Commitment and, on such date, such Domestic Lender shall purchase at par such of the contrary, Loans and/or participations in the Non-Defaulting Lenders’ option to take an assignment L/C Obligations of the other Domestic Lenders as provided in Section 2.1(b)(ii)(B) the Administrative Agent shall determine may be exercised by a Non-Defaulting Lender necessary in its sole and absolute discretion and nothing contained herein shall obligate any Non-Defaulting order for such Domestic Lender to take any hold such assignmentDomestic Loans and participations in the L/C Obligations in accordance with its Domestic Percentage of the Domestic Commitments.
Appears in 1 contract
Sources: 5 Year Revolving Credit Agreement (General Motors Co)
Defaulting Lender. At any time when (a) If a Lender is then becomes, and during the period it remains, a Defaulting Lender, the Borrower, at the Borrower’s election, may elect to terminate following provisions shall apply:
(i) such Defaulting Lenders’ Ratable Share of the L/C Exposure and the Swing Line Advances will, subject to the limitation in the first proviso below, automatically be reallocated (effective on the day such Lender becomes a Defaulting Lender’s Commitment hereunder) 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, whether on the date that such Lender is required to purchase its participation in any Letter of Credit or otherwise); provided that (A) such termination must be the sum of the each Non-Defaulting Lender’s entire Commitmentaggregate principal amount of Revolving Credit Advances, (B) allocated share of the 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 Lenders shall each have the option to accept an assignment of the Defaulting Lender’s Commitment pursuant to Section 2.15 Lender as in lieu of a termination of Commitments pursuant to this Section 2.1(b)(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 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 2.17(a)(iii)), and letter of credit fees (subject to Section 2.17(a)(iii)) but specifically excluding any amounts owing under Section 2.11 as result of such payment of such Advances) and shall deposit with 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 2.17), (D) a Defaulting Lender’s Commitment may be terminated by the 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 effect at the time of such election reallocation 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) neither such reallocation nor any payment by a Non-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 Commitment shall be deemed terminated, and (3) such Defaulting Lender shall be relieved of its obligations hereunder as a “Revolving Lender” except as to its obligations under Section 8.4(b) and Section 9.1 shall continue with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Revolving Lender” hereunder, provided that, any such termination pursuant thereto will not be deemed to be constitute a waiver or release of any claim that the Borrower, the Administrative Agent, any Issuing Bank, any Swing Line Bank or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender;
(ii) to the Swingline extent that any portion (the “unreallocated portion”) of the Defaulting Lender’s share of the L/C Exposure and Swing Line Advances cannot be so reallocated, whether by reason of the proviso in clause (i) above or 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 (B) in the case of such Swing Line Advances, prepay (subject to clause (iii) below) and/or Cash Collateralize in full the unreallocated portion thereof, or (C) make other arrangements satisfactory to the 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 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 confirmation of such excess (it being understood that only such excess amount shall be so released); provided further that in accordance with Section 2.04, to the extent that the Borrower has Cash Collateralized the aggregate amount of the unreallocated portion of such L/C Exposure or Swing Line Advances, such unreallocated portion shall not accrue any fees, commissions or interest; and
(iii) any amount paid by the Borrower or otherwise received by the Agent for the account of a Defaulting Lender under this Agreement (whether on account of principal, interest, fees, indemnity payments or other amounts) will not be paid or distributed to such Defaulting Lender, but will instead be at the direction of the Borrower (A) retained by the Agent to Cash Collateralize the obligations of the Borrower to each Issuing Bank and each Swing Line Bank in respect of such Defaulting Lender’s unreallocated portion of the L/C Exposure or Swing Line Advances or to fund any Advance in respect of which such Defaulting Lender has failed to fund its portion thereof as required, or (B) retained by the Agent in a segregated non-interest bearing account until (subject to Section 2.20(d)) the termination of the Commitments and payment in full of all obligations of the Borrower hereunder and will be applied by the Agent, to the fullest extent permitted by law, to the making of payments from time to time in the following order of priority: first to the payment of any amounts owing by such Defaulting Lender to the Agent under this Agreement, second to the payment of any amounts owing by such Defaulting Lender to an Issuing Bank or a Swing Line Bank (pro rata as to the respective amounts owing to each of them) under this Agreement, third to the payment of post-default interest and then current interest due and payable to the 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 a court of competent jurisdiction 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 any such 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.
(b) 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 result of the operation of this Section 2.20. The rights and remedies against a Defaulting Lender under this Section 2.20 are in addition to any other rights and remedies which the Borrower, the Agent or any Lender may have against such Defaulting Lender. Notwithstanding anything herein .
(c) If the Borrower and the Agent agree in writing in their reasonable determination that a Defaulting Lender should no longer be deemed to be a Defaulting Lender, the Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any cash collateral), that Lender will, to the contraryextent applicable, purchase that portion of outstanding Advances and L/C Exposure of the Non-other Lenders or take such other actions as the Agent may determine to be necessary to cause the Advances and L/C Exposure to be held on a pro rata basis by the Lenders in accordance with their pro rata share, whereupon such Lender will cease to be a Defaulting Lenders’ option Lender; provided that no adjustments will be made retroactively with respect to take an assignment as provided in Section 2.1(b)(ii)(B) may be exercised fees accrued or payments made by or on behalf of the Borrower while that Lender was a Non-Defaulting Lender in its sole Lender; and absolute discretion and nothing contained herein shall obligate any Non-provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to take Lender will constitute a waiver or release of any claim of any party hereunder arising from such assignmentLe▇▇▇▇’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 1 contract
Sources: Credit Agreement (Gatx Corp)
Defaulting Lender. TC “4.2 Defaulting Lender. “ \f c \l “2” \* MERGEFORMAT AUTONF D3_TCAgent shall not be obligated to transfer to a Defaulting Lender any 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 be a “Lender” and such ▇▇▇▇▇▇’s Commitment shall be deemed to be zero (0). At any time when a Lender that there is then a Defaulting Lender, payments received for application to the Borrower, at Obligations payable to Lenders (other than the Borrower’s election, may elect to terminate such Defaulting Lender’s Commitment hereunder; provided that (A) in accordance with the terms of this Agreement shall be distributed to such termination must be non-defaulting Lenders on a Pro Rata basis calculated after giving effect to the reduction of the Defaulting Lender’s entire CommitmentLoan to zero (0) as provided herein or at Agent’s option, (B) Agent may instead receive and retain such amounts that would be otherwise attributable to the Non-Pro Rata share of the Defaulting Lenders shall each have 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 accept an assignment relend such amounts, such amounts shall be treated as Loans for 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 pursuant to zero (0) as provided herein but shall be repaid in the same order of priority as Protective Advances for purposes of Section 2.15 in lieu 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 termination Defaulting Lender 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, (b) has made any other payments as it would have been required to make as a Lender during the 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 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 previously paid to such Lender), (iii) have its Commitment reinstated for all purposes and (iv) fund Loans and settle in respect of the Loans and other Obligations in accordance with the terms hereof. The existence of a Defaulting Lender and the operation of this Section shall not be construed to increase or DOCPROPERTY DOCXDOCID DMS=InterwovenIManage Format=<<NUM>>v<<VER>> PRESERVELOCATION \* MERGEFORMAT 11055505v9 otherwise affect the Commitment of any Lender, or relieve or excuse (except as otherwise expressly provided herein with respect to such Defaulting Lender) the performance by any Borrower or Guarantor of its duties and obligations hereunder. During any period in which there is a Defaulting Lender with a Commitment, for purposes of computing the amount of the obligation of each non-Defaulting Lender to acquire, refinance or 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 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 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 Section 2.1(b)(ii)Agreement, the Borrowers shall (Cx) pay to the extent that the Noneach 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 Lender that portion of any such fee otherwise payable to such Defaulting Lender in with respect to such Defaulting Lender’s capacity as a Revolving participation in Letters of Credit that has been reallocated to such non-Defaulting Lender under this Agreement and under pursuant to the other Credit Documents preceding sentence, (including principal y) pay to the applicable Issuing Bank the amount of and interest on any such fee otherwise payable to such Defaulting Lender to the Revolving Advances owed extent allocable to such Issuing Bank’s fronting exposure to such Defaulting Lender, accrued Commitment Fees and (subject z) not be required to pay the remaining amount of any such fee. Subject to Section 2.17(a)(iii))15.21 hereof, and letter of credit fees (subject to Section 2.17(a)(iii)) but specifically excluding any amounts owing under Section 2.11 as result of such payment of such Advances) and no reallocation hereunder 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 2.17), (D) a Defaulting Lender’s Commitment may be terminated by the 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 Commitment shall be deemed terminated, and (3) such Defaulting Lender shall be relieved of its obligations hereunder as a “Revolving Lender” except as to its obligations under Section 8.4(b) and Section 9.1 shall continue with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Revolving Lender” hereunder, provided that, any such termination will not be deemed to be constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender with a Commitment arising from that the Borrower, the Administrative Agent, the Swingline ▇▇▇▇▇▇ having become a Defaulting Lender, the Issuing including any claim of a non-Defaulting Lender or any Lender may have against as a result of such Defaulting Lender. Notwithstanding anything herein to the contrary, the Non-Defaulting Lenders’ option to take an assignment as provided in Section 2.1(b)(ii)(B) may be exercised by a Non-Defaulting Lender in its sole and absolute discretion and nothing contained herein shall obligate any Non-Defaulting Lender to take any Lender’s increased exposure following such assignmentreallocation.
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Defaulting Lender. At 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) fees shall cease to accrue on the unfunded portion of any Commitment of such Defaulting Lender pursuant to this Agreement;
(b) the Commitments and Obligations of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 9.02), 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 and provided further, neither the Tranche A Revolving Commitment nor the Tranche B Revolving Commitment of a Defaulting Lender may be increased without the written consent of such Defaulting Lender;
(c) if any Swingline Exposure or LC Exposure exists at the time when a Lender becomes a Defaulting Lender then:
(i) so long as no Default or Event of Default shall have occurred which is continuing and the other conditions precedent described in Article IV hereof have been satisfied, all or any part of such Swingline Exposure and LC Exposure shall be reallocated among the Lenders which are not Defaulting Lenders (the “Non-Defaulting Lenders”) in accordance with their respective Applicable Percentages but only to the extent (i) the sum of all Non-Defaulting Lenders’ Tranche A Revolving Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure with respect to Letters of Credit requested by ▇▇▇▇▇ does not exceed the total of all Non-Defaulting Lenders’ Tranche A Revolving Commitments, (ii) the sum of all Non-Defaulting Lenders’ Tranche A Revolving Exposures and Tranche B Revolving Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the total of all Non-Defaulting Lenders’ Tranche A Revolving Commitments (calculated without regard to the last sentence of the definition of “Tranche A Revolving Commitment”), and (iii) the sum of all Non-Defaulting Lenders’ Tranche B Revolving Exposures plus such Defaulting Lender’s LC Exposure with respect to Letters of Credit requested by M-I LLC does not exceed the total of all Non-Defaulting Lenders’ Tranche B Revolving Commitments; and
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the 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(j) for so long as such LC Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to this Section 2.18(c), the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 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 Section 2.10 shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; and
(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 the Issuing Bank or any Lender hereunder, all fees that otherwise would have been payable to such Defaulting Lender with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Bank until such LC Exposure is cash collateralized and/or reallocated;
(d) so long as any Lender is a Defaulting Lender, the BorrowerSwingline Lender shall not be required to fund any Swingline Loan and the Issuing Bank shall not be required to issue, at amend or increase any Letter of Credit, unless it is satisfied that the Borrower’s election, may elect to terminate such Defaulting Lender’s Commitment hereunder; provided that (A) such termination must related exposure will be 100% covered by the Revolving Commitments of the Defaulting Lender’s entire Commitment, (B) the Nonnon-Defaulting Lenders shall each have and/or cash collateral will be provided by the option to accept an assignment of the Defaulting Lender’s Commitment pursuant to Borrower in accordance with Section 2.15 in lieu of a termination of Commitments pursuant to this Section 2.1(b)(ii2.18(c), (C) to the extent that the Nonand participating interests in any such newly issued or increased Letter of Credit or newly made Swingline Loan shall be allocated among non-Defaulting Lenders do in a manner consistent with Section 2.18(c)(i) (and Defaulting Lenders shall not take an assignment as provided in the immediately preceding clause participate therein); and
(B), the Borrower shall pay all amounts owed by the Borrower e) any amount payable to such Defaulting Lender in hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender’s capacity as a Revolving Lender under this Agreement and under the other Credit Documents (including principal pursuant to Section 2.16) shall, in lieu of and interest on the Revolving Advances owed being distributed to such Defaulting Lender, accrued Commitment Fees (be retained by the Administrative Agent in a segregated account and, subject to Section 2.17(a)(iii))any applicable requirements of law, and letter be applied at such time or times as may be determined by the Administrative Agent (i) first, to the payment of credit fees (subject to Section 2.17(a)(iii)) but specifically excluding any amounts owing under Section 2.11 as result of by such payment of such Advances) and shall deposit with Defaulting Lender to the Administrative Agent into hereunder, (ii) second, pro rata, to the Cash Collateral Account payment of any amounts owing by such Defaulting Lender to the Issuing Bank or Swingline Lender hereunder, (iii) third, pro rata to the funding of any Loan and 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, (iv) fourth, if so determined by the Administrative Agent and the Borrower, held in such account as cash collateral in for future funding obligations of the amount equal Defaulting Lender under this Agreement, (v) fifth, pro rata, to the payment of any amounts owing to the Borrower or the Lenders as a result of any final, non-appealable judgment of a court of competent jurisdiction obtained by the Borrower or any Lender against such Defaulting Lender as a result of such Defaulting Lender’s ratable share breach of the Letter of Credit Exposure (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 Borrower its obligations under this Section 2.1(b)(iiAgreement and (vi) if and only if at such time, the Borrower has elected, or is then electingsixth, 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 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 which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 4.02 are satisfied, such payment shall cease be applied solely to be a “Revolving Lender” hereunder for prepay the Loans of, and reimbursement obligations owed to, all purposes except that such Lender’s rights and Non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations as a Revolving Lender under Sections 2.12owed to, 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 any Defaulting Lender’s Commitment shall be deemed terminated, and (3) such Defaulting Lender shall be relieved of its obligations hereunder as a “Revolving Lender” except as to its obligations under Section 8.4(b) and Section 9.1 shall continue with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Revolving Lender” hereunder, provided that, any such termination will not be deemed to be a waiver or release of any claim . In the event that the Borrower, the Administrative Agent, the Borrower and the Issuing Bank and the Swingline each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Issuing LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender or any Lender may have against shall purchase at par such Defaulting Lender. Notwithstanding anything herein to of the contrary, Loans of the Non-Defaulting Lenders’ option to take an assignment other Lenders (other than Swingline Loans) as provided in Section 2.1(b)(ii)(B) the Administrative shall determine may be exercised by a Non-Defaulting Lender necessary in its sole and absolute discretion and nothing contained herein shall obligate any Non-Defaulting order for such Lender to take any hold such assignmentLoans in accordance with its Applicable Percentage.
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Defaulting Lender. At 1. For so long as a Defaulting Lender has any time when undrawn Interim Commitment, in ascertaining (i) the Majority Interim Lenders; or (ii) whether any given percentage (including, for the avoidance of doubt, unanimity) of the Total Interim Commitments under the relevant Interim Facility/ies or the agreement of any specified group of Interim Lenders has been obtained to approve any request for a consent, waiver, amendment or other vote of Interim Lenders under the Interim Finance Documents, that Defaulting Lender's Interim Commitments under the relevant Interim Facility/ies will be reduced by the amount of its undrawn Interim Commitments under the relevant Interim Facility/ies and, to the extent that that reduction results in that Defaulting Lender's Total Interim Commitments being zero, that Defaulting Lender shall be deemed not to be an Interim Lender for the purposes of (i) and (ii) above.
2. For the purposes of paragraph 1 above, the Interim Facility Agent may assume that the following Interim Lenders are Defaulting Lenders:
(a) any Interim Lender which has notified the Interim Facility Agent that it has become a Defaulting Lender;
(b) any Interim Lender in relation to which it is then aware that any of the events or circumstances referred to in paragraphs (a), (b) or (c) of the definition of Defaulting Lender has occurred, unless it has received notice to the contrary from the Interim Lender concerned (together with any supporting evidence reasonably requested by the Interim Facility Agent) or the Interim Facility Agent is otherwise aware that the Interim Lender has ceased to be a Defaulting Lender.
3. Without prejudice to any other provision of this Agreement, the Agents may disclose and, on the written request of the Obligors' Agent or the Majority Interim Lenders, shall, as soon as reasonably practicable, disclose the identity of a Defaulting Lender to the Obligors' Agent and to the other Interim Finance Parties.
4. If any Interim Lender becomes a Defaulting Lender, the BorrowerObligors' Agent may, at any time whilst the Borrower’s election, may elect Interim Lender continues to terminate such be Defaulting Lender’s , give the Interim Facility Agent three (3) Business Days' notice of cancellation of all or any part of each undrawn Interim Commitment hereunderof that Interim Lender.
1. Replacement of an Interim Lender
(a) If at any time:
(i) any Interim Finance Party becomes or is a Non-Consenting Lender (as defined in paragraph (d) below); provided that or
(ii) an Obligor becomes obliged to repay any amount in accordance with Clause 11.3 (Illegality) or to pay additional amounts pursuant to Clause 10.1 (Gross-up), Clause 10.3 (Tax indemnity) or Clause 11.1 (Increased Costs) to any Interim Finance Party; or
(iii) any Interim Finance Party invokes the benefit of Clause 9 (Market Disruption); or
(iv) any Interim Finance Party becomes or is a Defaulting Lender, then the Obligors' Agent may, on no less than five (5) Business Days' prior written notice (a Replacement Notice) to the Interim Facility Agent and such Interim Finance Party (a Replaced Lender):
(A) replace a participation of such termination must be of the Defaulting Lender’s entire Commitment, Replaced Lender by requiring such Replaced Lender to (Band such Replaced Lender shall) the Non-Defaulting Lenders shall each have the option to accept an assignment of the Defaulting Lender’s Commitment transfer pursuant to Section 2.15 in lieu of a termination of Commitments pursuant Clause 24 (Changes to this Section 2.1(b)(ii), (CParties) to the extent that the Non-Defaulting Lenders do not take an assignment on such dates as provided specified in the immediately preceding clause (B), the Borrower shall pay Replacement Notice all amounts owed by the Borrower to such Defaulting Lender in such Defaulting Lender’s capacity as a Revolving Lender or part of its rights and obligations under this Agreement to an Interim Lender constituting a New Interim Lender under Clause 24.2 (Transfers by Interim Lenders) (a Replacement Lender) selected by the Obligors' Agent, which confirms its (or their) willingness to assume and under does assume all or part of the other Credit Documents obligations of the Replaced Lender (including principal the assumption of and interest the Replaced Lender's participations or unfunded or undrawn participations (as the case may be) on the Revolving Advances owed to such Defaulting same basis as the Replaced Lender, accrued Commitment Fees (subject to Section 2.17(a)(iii)), and letter of credit fees (subject to Section 2.17(a)(iii)) but specifically excluding any amounts owing under Section 2.11 as result of such payment of such Advances) and shall deposit with the Administrative Agent into the Cash Collateral Account for a purchase price in 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 2.17), (D) a Defaulting Lender’s Commitment may be terminated by the 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 payable at the time of such election and termination. Upon written notice transfer in an amount equal to the Defaulting Lender applicable outstanding principal amount of such Replaced ▇▇▇▇▇▇'s participation in the outstanding Interim Utilisations and all related accrued interest and other amounts payable in relation thereto under the Administrative Agent Interim Finance Documents in respect 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 such transferred participation; and/or
(B) prepay on such dates as specified in the Replacement Notice all or any part of such Interim ▇▇▇▇▇▇'s participation in the outstanding Interim Utilisations and all related accrued interest and other amounts payable in relation thereto under the Interim Finance Documents in respect of such participation; and/or
(C) above, (1) cancel all or part of the undrawn Interim Commitments of that Replaced Lender on such Defaulting Lender shall cease to be a “Revolving Lender” hereunder for all purposes except that such Lender’s rights and obligations dates 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 Commitment shall be deemed terminated, and (3) such Defaulting Lender shall be relieved of its obligations hereunder as a “Revolving Lender” except as to its obligations under Section 8.4(b) and Section 9.1 shall continue with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Revolving Lender” hereunder, provided that, any such termination will not be deemed to be a waiver or release of any claim that specified in the Borrower, the Administrative Agent, the Swingline Lender, the Issuing Lender or any Lender may have against such Defaulting Lender. Notwithstanding anything herein to the contrary, the Non-Defaulting Lenders’ option to take an assignment as provided in Section 2.1(b)(ii)(B) may be exercised by a Non-Defaulting Lender in its sole and absolute discretion and nothing contained herein shall obligate any Non-Defaulting Lender to take any such assignmentReplacement Notice.
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Defaulting Lender. At Notwithstanding any time when a provision of this Agreement to the contrary, if any Lender is then becomes a Defaulting Lender, then the Borrowerfollowing provisions shall apply for so long as such Lender is a Defaulting Lender: (a) fees shall cease to accrue on the Revolving Loan Commitment of such Defaulting Lender pursuant to Section 2.14(c)(i); (b) the Commitments, Loans and other Revolving Credit Obligations of such Defaulting Lender shall not be included in determining whether the Required Lenders or Required Revolving Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 9.03); provided that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender affected thereby; (c) if any Swing Line Obligations or L/C Obligations exist at the Borrower’s election, may elect time such Lender becomes a Defaulting Lender then: (i) all or any part of the Swing Line Obligations and L/C Obligations of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Pro Rata Shares of the Revolving Facility but only to terminate the extent the sum of all non-Defaulting Lenders’ Revolving Credit Obligations plus such Defaulting Lender’s Commitment hereunder; provided that (A) such termination must be Swing Line Obligations and L/C Obligations does not exceed the total of the Defaulting Lender’s entire Commitment, (B) the Nonall non-Defaulting Lenders shall each have Lenders’ Revolving Loan Commitments; (ii) if the option to accept an assignment of the Defaulting Lender’s Commitment pursuant to Section 2.15 reallocation described in lieu of a termination of Commitments pursuant to this Section 2.1(b)(ii), (C) to the extent that the Non-Defaulting Lenders do not take an assignment as provided in the immediately preceding clause (B)i) above cannot, or can only partially, be effected, the Borrower shall pay all amounts owed within one (1) Business Day following notice 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 2.17(a)(iii)), and letter of credit fees (subject to Section 2.17(a)(iii)) but specifically excluding any amounts owing under Section 2.11 as result of such payment of such Advances) and shall deposit with the Administrative Agent into (x) first, prepay such Swing Line Obligations and (y) second, cash collateralize for the Cash Collateral Account cash collateral in benefit of each Issuing Bank only the amount equal Borrower’s obligations corresponding to such Defaulting Lender’s ratable share of the Letter of Credit Exposure L/C Obligations (including after giving effect to any such Letter of Credit Exposure that has been reallocated partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.17), 3.11 for so long as such L/C Obligations are outstanding; (Diii) a if the Borrower cash collateralizes any portion of such Defaulting Lender’s Commitment may be terminated by the 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 L/C Obligations pursuant to this clause (ii) and above, the payment and deposit of amounts Borrower shall not be required to be made by the Borrower under clause (B) and (C) above, (1) pay any fees to such Defaulting Lender shall cease pursuant 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 Section 3.08 with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Revolving Lender” hereunder, (2) such Defaulting Lender’s Commitment L/C Obligations during the period such Defaulting Lender’s L/C Obligations are cash collateralized; (iv) if the L/C Obligations of the non-Defaulting Lenders are reallocated pursuant to clause (i) above, then the fees payable to the Revolving Lenders pursuant to Section 3.08 shall be deemed terminated, adjusted in accordance with such non-Defaulting Lenders’ Pro Rata Shares of the Revolving Facility; and (3v) if all or any portion of such Defaulting Lender’s L/C Obligations are neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice
(i) a Bankruptcy Event with respect to a parent of any Lender shall be relieved of its obligations hereunder occur following the Closing Date and for so long as such event shall continue or (ii) the Swing Line Bank or any Issuing Bank has a “Revolving Lender” except as to good faith belief that any Lender has defaulted in fulfilling its obligations under Section 8.4(b) and Section 9.1 one or more other agreements in which such Lender commits to extend credit, the Swing Line Bank shall continue with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Revolving Lender” hereunder, provided that, any such termination will not be deemed required to fund any Swing Line Loan and such Issuing Bank shall not be a waiver required to issue, amend or release increase any Letter of Credit, unless 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 defease any claim risk to it in respect of such Lender hereunder. In the event that the Borrower, the Administrative Agent, the Swingline Borrower, the Swing Line Bank and the Issuing Banks each agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Issuing Swing Line Obligations and L/C Obligations of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Revolving Loan Commitment and on such date such Lender or any Lender may have against shall purchase at par such Defaulting Lender. Notwithstanding anything herein to of the contrary, Revolving Loans of the Non-Defaulting Lenders’ option to take an assignment other Revolving Lenders (other than Swing Line Loans) as provided in Section 2.1(b)(ii)(B) the Administrative Agent shall determine may be exercised by a Non-Defaulting Lender necessary in its sole and absolute discretion and nothing contained herein shall obligate any Non-Defaulting order for such Lender to take any hold such assignmentLoans in accordance with its Pro Rata Share of the Revolving Facility.
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Defaulting Lender. At Notwithstanding any time when provision of this Credit 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) fees shall cease to accrue on the unused portion of the Commitment of such Defaulting Lender pursuant to Section 3.4(a);
(b) the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 11.6); provided that any waiver, amendment or modification that increases the Commitment of a Defaulting Lender, forgives all or any portion of the principal amount of any Loan or Reimbursement Obligations or interest thereon owing to a Defaulting Lender, reduces the Applicable Percentage on the underlying interest rate owing to a Defaulting Lender or extends the Revolving Loan Maturity Date shall require the consent of such Defaulting Lender;
(c) if any Swingline Exposure or unfunded LC Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) so long as the conditions set forth in Section 5.2 are satisfied at the time of such reallocation as if such reallocation were an extension of credit hereunder (and, unless the Borrowers shall have otherwise notified the Administrative Agent at such time, the Borrowers shall be deemed to have represented and warranted that such conditions are satisfied at such time), all or any part of the Swingline Exposure and unfunded LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Revolving Loan Commitment 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 unfunded LC Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments and (y) such reallocation does not cause a non-Defaulting Lender’s Revolving Credit Exposure to exceed its Commitment;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrowers shall (x) within two Business Days following notice by the Administrative Agent prepay such Swingline Exposure (or the portion remaining after a partial reallocation as aforesaid) and (y) within five Business Days following notice by the Administrative Agent, cash collateralize for the benefit of the Issuing Lender only the Borrowers’ obligations corresponding to such Defaulting Lender’s unfunded LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.3(l) for so long as such unfunded LC Exposure is outstanding;
(iii) if the Borrowers cash collateralize any portion of such Defaulting Lender’s unfunded LC Exposure pursuant to clause (ii) above, the Borrowers shall not be required to pay any fees, and such fees shall not accrue, to such Defaulting Lender pursuant to Section 3.4(b) with respect to such Defaulting Lender’s unfunded LC Exposure during the period such Defaulting Lender’s unfunded LC Exposure is cash collateralized;
(iv) if the unfunded LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Section 3.4(b) shall be adjusted in accordance with such non-Defaulting Lenders’ reallocated Revolving Loan Commitment Percentages; and
(v) if all or any portion of such Defaulting Lender’s unfunded LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of the Issuing Lender or any other Lender hereunder, all 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 unfunded LC Exposure) under Section 3.4(a) and Letter of Credit Fees payable under Section 3.4(b) with respect to such Defaulting Lender’s unfunded LC Exposure shall be payable to the Issuing Lender until and to the extent that such unfunded LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Lender is a Defaulting Lender, the BorrowerSwing Lender shall not be required to fund any Swing Loan and the Issuing Lender shall not be required to issue, at amend or increase any Letter of Credit, unless the Borrower’s election, may elect related exposure to terminate such Defaulting Lender’s Commitment hereunder; provided that (A) such termination must be of the Swing Lender and the Defaulting Lender’s entire Commitment, (B) then outstanding unfunded LC Exposure will be 100% covered by the NonCommitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers in accordance with Section 4.12(c), and participating interests in any newly made Swing Loan or any newly issued or increased Letter of Credit shall each have be allocated among non-Defaulting Lenders in a manner consistent with Section 11.9(c)(i) (and such Defaulting Lender shall not participate therein). If a Bankruptcy Event with respect to a Parent of any Lender shall occur following the option date hereof and for so long as such event shall continue, the Swing Lender shall not be required to accept an assignment fund any Swing Loan and the Issuing Lender shall not be required to issue, amend or increase any Letter of Credit, unless the related exposure and the Defaulting Lender’s Commitment pursuant to Section 2.15 in lieu then outstanding unfunded LC Exposure will be 100% covered by the Commitments of a termination of Commitments pursuant to this Section 2.1(b)(ii), (C) to the extent that the Nonnon-Defaulting Lenders do not take an assignment as provided in or the immediately preceding clause (B), Swing Lender or 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 Issuing Lender, accrued Commitment Fees (subject as the case may be, shall have entered into arrangements with the Borrowers or such Lender, satisfactory to Section 2.17(a)(iii))the Swing Lender or the Issuing Lender, and letter of credit fees (subject as the case may be, to Section 2.17(a)(iii)) but specifically excluding defease any amounts owing under Section 2.11 as result risk to it in respect of such payment of such Advances) and shall deposit with Lender hereunder. In 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 event that has been reallocated pursuant to Section 2.17), (D) a Defaulting Lender’s Commitment may be terminated by the 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 Commitment shall be deemed terminated, and (3) such Defaulting Lender shall be relieved of its obligations hereunder as a “Revolving Lender” except as to its obligations under Section 8.4(b) and Section 9.1 shall continue with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Revolving Lender” 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 Swingline LenderBorrowers, the Swing Lender and the Issuing Lender or any each agrees that a Defaulting Lender may have against has adequately remedied all matters that caused such Lender to be a Defaulting Lender. Notwithstanding anything herein , then the Swingline Exposure and unfunded LC Exposure of the Lenders shall be readjusted to reflect the contrary, inclusion of such Lender’s Commitment and on such date such Lender shall purchase at par such of the Non-Defaulting Lenders’ option to take an assignment Loans of the other Lenders (other than Competitive Bid Loans and Swing Loans) and the funded and unpaid participations of the other Lenders in the Swing Loans and Letters of Credit as provided in Section 2.1(b)(ii)(B) the Administrative Agent shall determine may be exercised by a Non-Defaulting Lender necessary in its sole and absolute discretion and nothing contained herein shall obligate any Non-Defaulting order for such Lender to take any hold such assignmentLoans in accordance with its Revolving Loan Commitment Percentage.
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Sources: Revolving Credit Agreement (Brandywine Operating Partnership, L.P.)
Defaulting Lender. At any time when a Lender is then a Defaulting Lender, the Borrower, at the Borrower’s its election, may elect to terminate such Defaulting Lender’s Revolving Commitment hereunder; provided that (A) such termination must be of the Defaulting Lender’s entire Commitment, (B) the Non-Defaulting Lenders shall each have the option to accept an assignment all of the Defaulting Lender’s Commitment pursuant to Section 2.15 in lieu of a termination of Commitments pursuant to this Section 2.1(b)(ii)Revolving Commitments, (CB) 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 2.17(a)(iii2.15(a)(iii)), and letter of credit fees (subject to Section 2.17(a)(iii)2.15(a)(iii) but specifically excluding any amounts owing under Section 2.11 2.10 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 portion thereof that has been reallocated pursuant to Section 2.172.15), (DC) a Defaulting Lender’s Commitment Commitments may be terminated by the Borrower under this Section 2.1(b)(ii2.1(c)(iii) 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 (ED) such termination shall not be permitted if a no 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 Commitments pursuant to this clause (iiiii) 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 2.12Section 2.9, 2.14Section 2.11, 8.4 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 “Revolving Lender” hereunder, (2) such Defaulting Lender’s Commitment Commitments shall be deemed terminated, and (3) such Defaulting Lender shall be relieved of its obligations hereunder as a “Revolving Lender” except as to its obligations under Section 8.4(b) 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 “Revolving Lender” hereunder, provided that, any such termination will not be deemed to be a waiver or release of any claim that by the Borrower, the Administrative Agent, the Swingline Lender, the Issuing Lender or any Lender may have against such Defaulting Lender. Notwithstanding anything herein to the contrary, the Non-Defaulting Lenders’ option to take an assignment as provided in Section 2.1(b)(ii)(B) may be exercised by a Non-Defaulting Lender in its sole and absolute discretion and nothing contained herein shall obligate any Non-Defaulting Lender to take any such assignment.
Appears in 1 contract
Defaulting Lender. At Notwithstanding any time when a provisions of this Agreement to the contrary, if any Lender is then becomes a Defaulting Lender, then the Borrowerfollowing provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) Fees shall cease to accrue on the unfunded portion of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(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 Commitment and the LC Exposure of such Defaulting Lender shall not be included in determining whether all 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 9.02); provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender 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 BorrowerAdministrative 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 electionbreach of its obligations under this Agreement; seventh, may elect so long as no Default or Event of Default exists, to terminate 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 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 the sum of all non-Defaulting Lenders’ Revolving Exposures plus 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’ Commitments; or
(ii) if the reallocation described in paragraph (i) above cannot, or can only partially, be effected, the Borrowers shall, without prejudice to any other right or remedy available to them hereunder or under law, within two Business Days following notice by the Administrative Agent, Cash collateralize 100.0% of such Defaulting Lender’s Commitment hereunder; 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 paragraph (i) above and any Cash collateral provided that by the Defaulting Lender) or make other arrangements reasonably satisfactory to the Administrative Agent and to the applicable Issuing Bank and/or Swingline Lender with respect to such LC Exposure and obligations to fund participations. Cash collateral (or the appropriate portion thereof) provided to reduce LC Exposure or other obligations shall be released promptly following (A) such termination must be the elimination of the applicable LC Exposure or other obligations giving rise thereto (including by the termination of Defaulting Lender’s entire CommitmentLender status of the applicable Lender (or, as appropriate, its assignee following compliance with Section 2.19)) or (B) the NonAdministrative Agent’s good faith determination that there exists excess Cash collateral.
(iii) if the LC Exposure of the non-Defaulting 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 are reallocated pursuant to this Section 2.1(b)(ii2.22(d), (C) then the fees payable to the extent that Lenders pursuant to Sections 2.12(a) and (b), as the Noncase may be, shall be adjusted in accordance with such non-Defaulting Lenders do not take an assignment as provided in the immediately preceding clause Lenders’ Applicable Percentages; or
(B), the Borrower shall pay all amounts owed by the Borrower to such Defaulting Lender in such iv) if any Defaulting Lender’s capacity as a Revolving Lender under LC Exposure is not Cash collateralized, prepaid or reallocated pursuant to 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 2.17(a)(iii)2.22(d), and then, without prejudice to any rights or remedies of the applicable Issuing Bank or any Lender hereunder, all letter of credit fees (subject to Section 2.17(a)(iii)) but specifically excluding any amounts owing payable under Section 2.11 as result of such payment of such Advances2.12(b) and shall deposit with the Administrative Agent into the Cash Collateral Account cash collateral in the amount equal respect to such Defaulting Lender’s ratable share of the Letter of Credit LC Exposure (including any such Letter of Credit Exposure that has been reallocated pursuant to Section 2.17), (D) a Defaulting Lender’s Commitment may shall be terminated by the 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 payable 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) applicable Issuing Bank until such Defaulting Lender’s Commitment LC Exposure is Cash collateralized.
(e) So long as any Lender is Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be deemed terminatedrequired to issue, extend, create, incur, amend or increase any Letter of Credit unless it is reasonably satisfied that the related exposure will be 100.0% covered by the Commitments of the non-Defaulting Lenders and/or Cash collateral will be provided by the Borrowers in accordance with Section 2.22(d), and participating interests in any such newly issued, extended or created Letter of Credit or newly made Swingline Loan shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.22(d)(i) (3and Defaulting Lenders shall not participate therein).
(f) such In the event that the Administrative Agent, the Borrowers, the Issuing Banks and the Swingline Lender each agree 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 relieved readjusted to reflect the inclusion of such Lender’s Commitment and on such date such 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 Lender to hold such Loans or participations in accordance with its obligations hereunder as a “Revolving Lender” except as to its obligations under Section 8.4(b) and Section 9.1 shall continue Applicable Percentage; provided that no adjustments will be made retroactively with respect to events fees accrued or payments made by or on behalf of the Borrowers while that Lender was a Defaulting Lender; and occurrences occurring before or concurrently with its ceasing provided, further, that except to be a “Revolving Lender” hereunderthe extent otherwise expressly agreed by the affected parties, provided that, any such termination no change hereunder from Defaulting Lender to Lender will not be deemed to be constitute a waiver or release of any claim of any party hereunder arising from that the Borrower, the Administrative Agent, the Swingline Lender, the Issuing Lender or any Lender may have against such ’s having been a Defaulting Lender. Notwithstanding anything herein to the contrary, the Non-Defaulting Lenders’ option to take an assignment as provided in Section 2.1(b)(ii)(B) may be exercised by a Non-Defaulting Lender in its sole and absolute discretion and nothing contained herein shall obligate any Non-Defaulting Lender to take any such assignment.
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Defaulting Lender. At any 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 hereunderhereunder 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 2.15 2.13 in lieu of a termination of Commitments pursuant to this Section 2.1(b)(ii2.1(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 2.17(a)(iii2.6(a)), and letter of credit fees (subject to Section 2.17(a)(iii)) but specifically excluding any amounts owing under Section 2.11 2.9 as result of such payment 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 (including other than any such Letter of Credit Exposure that has been reallocated pursuant to Section 2.172.14), (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(b)(ii2.1(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 (EF) such termination shall not be permitted if a an Event of Default has occurred and is continuing at the time of such election and terminationcontinuing. Upon written notice to the Defaulting Lender and the Administrative Agent of the Borrower’s election to terminate a Defaulting Lender’s Revolving Commitment and Term Commitment pursuant to this clause (iiiii) 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, 2.14, 8.4 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 a “Term Lender” ,as applicable, except as to its obligations under Section 8.4(b) and Section 9.1 8.9 shall continue with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Revolving Lender” or a “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 Swingline Swing Line Lender, the Issuing Lender or any Lender may have against such Defaulting Lender. Notwithstanding anything herein to the contrary, (x) if no Term 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 Term Lender, and (z) any termination of a Defaulting Lender’s Revolving Commitment pursuant to this clause (iii) must occur concurrently with a termination of such Defaulting Lender’s Term Commitments. Notwithstanding anything herein to the contrary, the Non-Defaulting Lenders’ option to take an assignment as provided in Section 2.1(b)(ii)(B2.1(c)(iii)(B) may be exercised by a Non-Defaulting Lender in its sole and absolute discretion and nothing contained herein shall obligate any Non-Defaulting Lender to take any such assignment.
Appears in 1 contract
Defaulting Lender. At any time when a Lender is then a Defaulting Lender, the Borrower, at the Borrower’s its election, may elect to terminate such Defaulting Lender’s 's Commitment hereunder; provided that (A) such termination must be of all of the Defaulting Lender’s entire Commitment's Commitments, (B) the Non-Defaulting 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 pursuant to this Section 2.1(b)(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 it to such Defaulting Lender in such Defaulting Lender’s '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 Unused Line Fees (subject to Section 2.17(a)(iii2.18(a)(iii)), and letter of credit fees (subject to Section 2.17(a)(iii)2.18(a)(iii) but specifically excluding any amounts owing under Section 2.11 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 's ratable share of the Dollar Equivalent of the Letter of Credit Exposure (including any such Letter of Credit Exposure portion thereof that has been reallocated pursuant to Section 2.172.18), (DC) a Defaulting Lender’s Commitment 's Commitments may be terminated by the 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 (ED) such termination shall not be permitted if a no 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 's election to terminate a Defaulting Lender’s Commitment 's Commitments pursuant to this clause (iiiv) 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 's rights and obligations as a Revolving Lender under Sections 2.12Section 2.11, 2.142.13, 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 “Revolving "Lender” " hereunder, (2) such Defaulting Lender’s Commitment 's Commitments shall be deemed terminated, and (3) such Defaulting Lender shall be relieved of its obligations hereunder as a “Revolving "Lender” " except as to its obligations under Section 8.4(b) 8.4 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 “Revolving "Lender” " hereunder, provided that, any such termination will not be deemed to be a waiver or release of any claim that the by Borrower, the Administrative Agent, the Swingline LenderLenders, the Issuing Lender Lenders or any Lender may have against such Defaulting Lender. Notwithstanding anything herein to the contrary, the Non-Defaulting Lenders’ option to take an assignment as provided in Section 2.1(b)(ii)(B) may be exercised by a Non-Defaulting Lender in its sole and absolute discretion and nothing contained herein shall obligate any Non-Defaulting Lender to take any such assignment.
Appears in 1 contract
Defaulting Lender. At Notwithstanding any time when 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 then a Defaulting Lender:
(a) Fees shall cease to accrue on the unfunded portion of the Revolving Loan Commitment of such Defaulting Lender.
(b) The Commitment amounts outstanding on the Loans of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 8.2); 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 required by the Swing Line Lender, the Borrowers shall promptly post cash collateral to the Swing Line Lender 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 in the Swing Line Exposure, and the Swing Line Lender shall not be required to make any Swing Line Loans until the foregoing has been completed.
(d) If required by any Issuing Lender, the Borrowers shall promptly post cash collateral to the Issuing Lender or enter into other arrangements reasonably satisfactory to the Issuing Lender to eliminate the Issuing Lender’s risk with respect to the participation by the Defaulting Lender in Letters of Credit, and the Issuing Lender shall not be required to issue any Letters of Credit until the foregoing has been completed.
(e) So long as any Lender is a Defaulting Lender, the BorrowerSwing Line Lender shall not be required to fund any Swing Line Loan and any Issuing Lender shall not be required to issue, at amend or increase any Letter of Credit, unless it is satisfied that the Borrower’s election, may elect to terminate such Defaulting Lender’s Commitment hereunder; provided that (A) such termination must related exposure will be 100% covered by the Commitments of the Defaulting Lender’s entire Commitment, (B) the Nonnon-Defaulting 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 pursuant to this Section 2.1(b)(ii), (C) to the extent that the Non-Defaulting Lenders do not take an assignment as and/or cash collateral will be provided in the immediately preceding clause (B), the Borrower shall pay all amounts owed by the Borrower Borrower.
(f) any amount payable to such Defaulting Lender in such Defaulting Lender’s capacity as a Revolving Lender under this Agreement (whether on account of principal, interest, fees or otherwise and under the other Credit Documents (including principal any amount that would otherwise be payable to such Defaulting Lender pursuant to this Agreement, shall, in lieu of and interest on the Revolving Advances owed being distributed to such Defaulting Lender, accrued Commitment Fees (be retained by the Agent in a segregated account and, subject to Section 2.17(a)(iii))any applicable requirements of law, and letter be applied at such time or times as may be determined by the Agent (i) first, to the payment of credit fees (subject to Section 2.17(a)(iii)) but specifically excluding any amounts owing by such Defaulting Lender to the Agent hereunder, (ii) second, to the payment of any amounts owing by such Defaulting Lender to the Swing Line Lender or any Issuing Lender hereunder, (iii) third, to the cash collateralization of any participating interest in any Swing Line Loan or Letter of Credit (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, if so determined by the Agent, held in such account as cash collateral for future funding obligations of the Defaulting Lender under Section 2.11 this Agreement, (v) fifth, pro rata, to the payment of any amounts owing to the Borrower or the Lenders as a result of any judgment of a court of competent jurisdiction obtained by the Borrower or any Lender against such payment Defaulting Lender as a result 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 breach of its obligations under this Agreement, (vi) sixth, to the funding of any Revolving Loan for the account of the Letter Defaulting Lender, and (vii) seventh, to such Defaulting Lender or as otherwise directed by a court of Credit Exposure competent jurisdiction.
(including g) In the event that the Agent, the Borrower, any Issuing Lender and the Swing Line Lender each agrees that a Defaulting Lender has adequately remedied all matters that caused such Letter of Credit Exposure that has been reallocated pursuant Lender to Section 2.17), (D) be a Defaulting Lender’s Commitment , then the 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 terminated by another Lender); provided, that (i) such assignee shall have received the prior written approval of the Borrower under this Section 2.1(b)(ii) if and only if at such timethe Agent, the Borrower has elected, or is then electing, to terminate the Commitments of all then existing Defaulting Lenderswhich consent shall not be unreasonably withheld, 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 have received payment of an amount equal to be a “Revolving Lender” hereunder for the outstanding principal amount of all purposes except that such Lender’s rights Obligations owed to it, accrued interest thereon, accrued fees and obligations as a Revolving Lender under Sections 2.12, 2.14, 8.4 and 9.1 shall continue with respect all other amounts payable to events and occurrences occurring before or concurrently with its ceasing to be a “Revolving Lender” it hereunder, from the assignee (2) in the case of such Defaulting Lender’s Commitment shall be deemed terminated, outstanding principal and (3) such Defaulting Lender shall be relieved of its obligations hereunder as a “Revolving Lender” except as to its obligations under Section 8.4(baccrued interest) and Section 9.1 shall continue with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Revolving Lender” hereunder, provided that, any such termination will not be deemed to be a waiver or release from the Borrower (in the case of any claim that the Borrower, the Administrative Agent, the Swingline Lender, the Issuing Lender or any Lender may have against such Defaulting Lender. Notwithstanding anything herein to the contrary, the Non-Defaulting Lenders’ option to take an assignment as provided in Section 2.1(b)(ii)(B) may be exercised by a Non-Defaulting Lender in its sole and absolute discretion and nothing contained herein shall obligate any Non-Defaulting Lender to take any such assignmentall other amounts).
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Defaulting Lender. At Notwithstanding any time when 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 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 5.03 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 BorrowerIssuing Lenders shall not be required to issue, at extend, amend or increase any Letter of Credit, unless the Borrower’s election, may elect to terminate such Defaulting Lender’s Commitment hereunder; provided applicable Issuing Lender is satisfied that (A) such termination must the related exposure will be 100% covered by the Revolving Credit Commitments of the Defaulting Lender’s entire Commitment, (B) the Nonnon-Defaulting Lenders shall each have and/or cash collateral will be provided by the option to accept an assignment of the Defaulting Lender’s Commitment pursuant to Section 2.15 Borrowers in lieu of a termination of Commitments pursuant to accordance with this Section 2.1(b)(ii2.18(c), (C) to the extent that the Nonand participating interests in any such newly issued, extended or increased Letter of Credit shall be allocated among non-Defaulting Lenders do in a manner consistent with Section 2.18(c)(i) (and Defaulting Lenders shall not take an assignment as provided in the immediately preceding clause participate therein); and
(B), the Borrower shall pay all amounts owed by the Borrower e) any amount payable to such Defaulting Lender in hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender’s capacity as a Revolving Lender under this Agreement and under the other Credit Documents (including principal pursuant to Section 2.16(d) but excluding Section 2.17(b)) shall, in lieu of and interest on the Revolving Advances owed being distributed to such Defaulting Lender, accrued Commitment Fees (be retained by the Administrative Agent in a segregated account and, subject to Section 2.17(a)(iii))any applicable requirements of law, and letter be applied at such time or times as may be determined by the Administrative Agent (i) first, to the payment of credit fees (subject to Section 2.17(a)(iii)) but specifically excluding any amounts owing under Section 2.11 as result of by such payment of such Advances) and shall deposit with Defaulting Lender to the Administrative Agent into hereunder, (ii) second, pro rata, to the Cash Collateral Account 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 in the amount equal to such Defaulting Lender’s ratable share for future funding obligations of the Letter of Credit Exposure (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 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 any participating interest in any Letter of amounts required to be made by the Borrower under clause (B) and (C) aboveCredit, (1iv) fourth, to the funding of any Loan in respect of which such Defaulting Lender shall cease has failed to be a “Revolving Lender” hereunder for all purposes except that such Lender’s rights and obligations fund its portion thereof as a Revolving Lender under Sections 2.12required by this Agreement, 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 Commitment shall be deemed terminated, and (3) such Defaulting Lender shall be relieved of its obligations hereunder as a “Revolving Lender” except as to its obligations under Section 8.4(b) and Section 9.1 shall continue with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Revolving Lender” hereunder, provided that, any such termination will not be deemed to be a waiver or release of any claim that the Borrower, determined by the Administrative Agent, (v) fifth, if so determined by the Swingline LenderAdministrative 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 or as a result of any Lender may have against such Defaulting Lender. Notwithstanding anything herein to the contrary, the Non-Defaulting Lenders’ option to take an assignment as provided in Section 2.1(b)(ii)(B) may be exercised by judgment of a Non-Defaulting Lender in its sole and absolute discretion and nothing contained herein shall obligate any Non-Defaulting Lender to take any such assignment.court of competent
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Defaulting Lender. At Notwithstanding any time when a provision of this Agreement to the contrary, if any Lender is then becomes a Defaulting Lender, then the Borrower, at the Borrower’s election, may elect to terminate following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) Fees in favor of such Defaulting Lender’s Lender only shall cease to accrue on the unfunded portion of the Commitments of, and in respect of the participation in Letters of Credit by, such Defaulting Lender pursuant to Section 4.03 and Section 4.04, and the Defaulting Lender will not be included in any distribution to the Lenders, pursuant to Section 3.03, of Commitment hereunder; provided that Fees or LC Participation Fees.
(Ab) If a Lender has any LC Exposure at any time such termination must Lender is 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 Revolver Percentages of the LC Exposure but only to the extent (x) the sum of (1) the principal amount of all non-Defaulting Lenders’ outstanding Conventional Revolving Loans, Alternate Currency Loans (each calculated in its Dollar equivalent) and Discretionary Revolving Loans and (2) all non-Defaulting Lenders’ LC Exposure, including their pro rata shares of the Defaulting Lender’s entire CommitmentLC Exposure, does not exceed the total of all non-Defaulting Lenders’ Commitments, (By) the Nonsum of (1) the principal amount of any non-Defaulting Lenders shall Lender’s outstanding Conventional Revolving Loans, Alternate Currency Loans (each have the option to accept an assignment calculated in its Dollar equivalent) and Discretionary Revolving Loans and (2) such non-Defaulting Lender’s LC Exposure, including such non-Defaulting Lender’s pro rata share of the Defaulting Lender’s Commitment pursuant to Section 2.15 in lieu of a termination of Commitments pursuant to this Section 2.1(b)(ii)allocated LC Exposure, (C) to the extent that the Nondoes not exceed such 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 2.17(a)(iii))Commitment, and letter of credit fees (subject to z) the conditions set forth in Section 2.17(a)(iii)7.02 are satisfied at such time;
(ii) but specifically excluding any amounts owing under Section 2.11 as result of such payment of such Advancesif the reallocation described in clause (i) and shall deposit with 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 Agent, deposit cash collateral in the an amount equal to such Defaulting Lender’s ratable share of the Letter of Credit LC Exposure (including after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.11(j) for so long as such Letter of Credit LC Exposure is outstanding;
(iii) the Company shall not be required to pay any fees that has been reallocated are solely payable to such Defaulting Lender pursuant to Section 2.17), (D) a Defaulting Lender’s Commitment may be terminated by the 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 4.04 with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Revolving Lender” hereunder, (2) such Defaulting Lender’s Commitment LC Exposure;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.14(b), then the fees payable to the Lenders pursuant to Section 4.03 and Section 4.04 shall be deemed terminatedadjusted in accordance with such non-Defaulting Lenders’ Applicable Revolver Percentages; and
(v) to the extent any Defaulting Lender’s LC Exposure is neither cash collateralized nor reallocated pursuant to this Section 2.14(b), and (3) such Defaulting Lender shall be relieved then, without prejudice to any rights or remedies of its obligations hereunder as a “Revolving Lender” except as to its obligations under Section 8.4(b) and Section 9.1 shall continue with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Revolving Lender” 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 Swingline Lender, the Issuing Lender or any Lender may hereunder, that portion of the LC Participation Fees that would have against been payable under Section 4.04 with respect to such Defaulting Lender. Notwithstanding anything herein ’s LC Exposure had it not been a Defaulting Lender that has not been cash collateralized or reallocated shall be payable to the contraryIssuing Lender until such LC Exposure is cash collateralized or reallocated.
(c) So long as any Lender is a Defaulting Lender, the NonIssuing Lender shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Lenders’ option to take an assignment as Lenders or cash collateral will be provided by the Company in accordance with Section 2.1(b)(ii)(B) may 2.11(j), and participating interests in any newly issued or increased Letter of Credit shall be exercised by a Nonallocated among non-Defaulting Lender Lenders in its sole a manner consistent with Section 2.14(b)(i) (and absolute discretion Defaulting Lenders shall not participate therein) and nothing contained herein shall obligate any Non-unallocated LC Exposure of the Defaulting Lender shall be cash collateralized. In the event that the Administrative Agent, the Company, and the Issuing Lender each agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to take be a Defaulting Lender, then the LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitments, and on such date the Administrative Agent shall return to the Company any such assignmentcash collateral that has been granted pursuant to this Section.”
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Defaulting Lender. At 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) Facility Fees, if any, shall cease to accrue on the unfunded Commitment of such Defaulting Lender pursuant to Section 2.13;
(b) such Defaulting Lender and the Commitment and Extensions of Credit of such Defaulting Lender shall not be included in determining whether the Lenders, 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, consent, waiver or other modification pursuant to Section 10.1); provided, that this clause (b) shall not apply in the case of an amendment, waiver or other modification that has the effect of (i) increasing the amount or extending the expiration date of all or 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 Swingline Exposure or L/C Obligations exist at the time 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 Defaulting Lender shall be reallocated among the Domestic Lenders that are not Defaulting Lenders in accordance with their Domestic Percentages (calculated without regard to such Defaulting Lender) but only to the extent the sum of all non-Defaulting Lenders' Domestic Extensions of Credit plus outstanding Domestic Competitive Loans plus such Swingline Exposure does not exceed the total of all Domestic Lenders that are not Defaulting Lenders' Domestic Commitments and (y) all or any part of the L/C Obligations of such Defaulting Lender shall be reallocated among the L/C Tranche Lenders that are not Defaulting Lenders in 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 not Defaulting Lenders' L/C Tranche Commitments;
(ii) if any reallocation described in clause (i) above cannot, or can only partially, be effected, the Company or any applicable Subsidiary Borrower shall, at any time when and from time to time following notice by the Administrative 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 L/C Obligations (after giving effect to any partial reallocation pursuant to clause (i) above) for so long as such L/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 or any Subsidiary Borrower Collateralizes any portion of such Defaulting Lender's L/C Obligations pursuant to clause (ii) above, neither the Company nor any relevant Subsidiary Borrower shall be required to pay any fees to such Defaulting Lender pursuant to Section 3.3 with respect to such Defaulting Lender's L/C Obligations during the period and to the extent such Defaulting Lender's L/C Obligations are so Collateralized;
(iv) if the L/C Obligations or Swingline Exposure of the Defaulting Lenders are reallocated pursuant to clause (i) above, then the fees payable to the non-Defaulting Lenders pursuant to Section 2.13 and Section 3.3, as applicable, shall be adjusted in accordance with such non-Defaulting Lenders' 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; and
(v) if all or any portion of such Defaulting Lender's L/C Obligations is neither reallocated nor Collateralized pursuant to 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 fees payable pursuant to the L/C Fee Letter with respect to such Defaulting Lender's L/C Obligations shall be payable to the applicable Issuing 509265-1725-11432-13209999 Lender until and to the extent that such L/C Obligations are so reallocated and/or Collateralized; and
(d) no Issuing Lender shall be required to issue, renew, amend or increase any Letter of Credit, and no Swingline Lender shall be required to fund any Swingline Loan, unless 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 L/C Tranche Commitments or Domestic Commitments, as applicable, of the L/C Tranche Lenders and/or Domestic Lenders, as applicable, that are not Defaulting Lenders and/or Collateralized by the Company or any applicable Subsidiary Borrower in accordance with this Section 2.28 and participating interests in any newly made Swingline Loan or any newly issued or increased Letter of Credit shall be allocated among the Domestic Lenders or L/C Tranche Lenders, as applicable, that are not Defaulting Lenders in a manner consistent with this Section 2.28 (and such Defaulting Lender shall not participate therein). If (i) a Lender is then Insolvency Event with respect to the parent company of any L/C Tranche Lender shall occur following the Closing Date and for so long as such event shall continue or (ii) any 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, no Issuing Lender shall be required to issue, amend or increase any Letter of Credit unless such Issuing Lender shall have entered into arrangements with the Company or such L/C Tranche Lender, satisfactory to such Issuing Lender, to defease any risk to 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 Domestic Lender commits to extend credit, no Swingline Lender shall be required to fund any Swingline Loan unless such Swingline Lender shall have entered into arrangements with the Company or such Domestic Lender, satisfactory to such Swingline Lender, to defease any risk to it in respect of such Domestic Lender hereunder. In the event that a Domestic Lender becomes a Defaulting Lender, the Borrower, at the Borrower’s election, may elect to terminate such Defaulting Lender’s Commitment hereunder; provided that (A) such termination must be of the Defaulting Lender’s entire Commitment, (B) the Non-Defaulting Lenders Administrative Agent 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 pursuant to this Section 2.1(b)(ii), (C) give notice to the extent Company and each affected Swingline Lender stating 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 Domestic 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 2.17(a)(iii)), and letter of credit fees (subject to Section 2.17(a)(iii)) but specifically excluding any amounts owing under Section 2.11 as result of such payment of such Advances) and shall deposit with 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 2.17), (D) become a Defaulting Lender’s Commitment may be terminated by . In the 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 event that each 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 Commitment shall be deemed terminated, and (3) such Defaulting Lender shall be relieved of its obligations hereunder as a “Revolving Lender” except as to its obligations under Section 8.4(b) and Section 9.1 shall continue with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Revolving Lender” 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 Company, each relevant Subsidiary Borrower and each affected Swingline Lender agrees that such Defaulting Lender has adequately remedied all matters that caused such Defaulting Lender to be a Defaulting Lender, then the Swingline Exposure of the Domestic Lenders shall be readjusted to reflect the inclusion of such Defaulting Lender's Domestic Commitments and, on such date, such 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 Domestic Lender to hold such Domestic Loans and participations in the Swingline Exposure in accordance with its Domestic 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 or any stating that such L/C Tranche Lender may have against 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. Notwithstanding anything herein to 's L/C Tranche Commitments and, on such date, such L/C Tranche Lender shall purchase at par such of the contrary, Loans and/or participations in the Non-Defaulting Lenders’ option to take an assignment L/C Obligations of the other L/C Tranche Lenders as provided in Section 2.1(b)(ii)(B) the Administrative Agent shall determine may be exercised by a Non-Defaulting Lender necessary in its sole and absolute discretion and nothing contained herein shall obligate any Non-Defaulting order for such L/C Tranche Lender to take any hold such assignmentL/C Tranche Loans and participations in the L/C Obligations in accordance with its L/C Tranche Percentage of the L/C Tranche Commitments.
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Defaulting Lender. At Notwithstanding any time when a provision of this Agreement to the contrary, if any Lender is then becomes a Defaulting Lender, then the Borrower, at the Borrower’s election, may elect to terminate following provisions shall apply for so long as such Lender is a Defaulting Lender’s Commitment hereunder; :
(a) except as otherwise expressly provided that (A) such termination must for in this Section 2.23, Advances under the relevant Commitments shall be of the Defaulting Lender’s entire Commitment, (B) 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 have 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 option 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 accept an assignment 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 in favor of such Defaulting Lender pursuant to Section 2.15 3.3;
(c) Revolving Commitment Percentage and L/C Commitment Percentage and outstanding Revolving 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 lieu determining whether the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 16.2); provided, that this clause (c) shall not apply to the vote of a termination Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such particular Lender and/or each Lender directly affected thereby;
(d) if any 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 ▇▇▇▇▇▇ becomes a Defaulting Lender, then:
(i) all or any part of the obligations of such Defaulting Lenders under its Participation Commitments pursuant 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 Lenders that are Non-Defaulting Lenders with respect to this Section 2.1(b)(ii)the Initial Commitments, (C) the Revolving Commitments and the L/C Commitments in accordance with their respective Ratable Shares but only to the extent that (x) the aggregate sum of outstanding Revolving Advances plus the aggregate Maximum Undrawn Amount of all outstanding Letters of Credit shall not exceed the aggregate of the Revolving Commitment Amount of all such Non-Defaulting Lenders do not take an assignment as provided in Lenders, (y) the immediately preceding clause (B), aggregate sum of outstanding L/C Commitment Advances plus 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 2.17(a)(iii)), and letter of credit fees (subject to Section 2.17(a)(iii)) but specifically excluding any amounts owing under Section 2.11 as result of such payment of such Advances) and shall deposit with the Administrative Agent into the Cash Collateral Account cash collateral in the maximum undrawn face amount equal to such Defaulting Lender’s ratable share of the WTC Letter of Credit Exposure (including any such Letter shall not exceed the aggregate of Credit Exposure that has been reallocated pursuant to Section 2.17), (D) a Defaulting Lender’s the L/C Commitment may be terminated by the 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 Amount of all then existing such Non-Defaulting Lenders, and (Ez) such termination shall not be permitted if a no Potential Default or Event of Default has occurred and is continuing at such time; and all or any part of the time obligations of such election and termination. Upon written notice to the Defaulting Lender and the Administrative Agent of the Borrower’s election to terminate a Lenders under its Roll-Up Participation Commitments (such Defaulting Lender’s “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 aggregate of the Roll-Up Commitment Amount of all such Non-Defaulting Lenders, and (y) 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 Borrower shall within one Business Day following notice by the Agent cash collateralize for the benefit of the Issuer Borrowers’ obligations corresponding to such Defaulting Lender’s 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 this clause (i) above) in accordance with Section 3.2(b) for so long as any Letters of Credit, the WTC Letter of Credit and any Roll-Up Letters of Credit, as applicable, are outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s 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 clause (i) above), pursuant to clause (ii) above, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 3.2 with respect to such Defaulting Lender’s Letter of Credit Obligations or Roll-Up Letter of Credit Obligations, as applicable, during the period such Defaulting Lender’s Participation Commitments or Roll-Up Participation Commitments, as applicable, are cash collateralized;
(iv) if any portion of the Non-Defaulting Lenders’ Letter of Credit Obligations are reallocated pursuant to clause (i) above, then the fees payable to the Revolving Lenders or the L/C Commitment Lenders, as applicable, pursuant to Section 3.2 shall be adjusted in accordance with such Non-Defaulting Lenders’ Ratable 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; and
(v) if all or any portion of such Defaulting Lender’s 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 Letter of Credit Fees payable under Section 3.2 with respect to such Defaulting Lender’s Letter of Credit Obligations shall be payable to Issuer (and not to such Defaulting Lender) until and to the extent that such 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 cash collateralized; and
(e) so long as such Lender is a Defaulting Lender with respect to Revolving Advances or L/C Commitment Advances, Issuer shall not be required to issue, amend or increase any Letter of Credit, unless Issuer is satisfied that the related exposure and the payment Defaulting Lender’s then outstanding Letter of Credit Obligations will be 100% covered by the Revolving Credit Commitments and deposit L/C Commitments of amounts required to the Non-Defaulting Lenders and/or cash collateral will be made provided by the Borrower under clause in accordance with Section 2.23(d)(iii), and participating interests in any newly issued or increased Letter of Credit shall be allocated among Non-Defaulting Lenders in a manner consistent with Section 2.23(d)(i) (B) and (C) above, (1) such Defaulting Lender shall cease to be not participate therein); and so long as such Lender is a “Revolving Lender” hereunder for all purposes except that such Lender’s rights and obligations as a Revolving Defaulting Lender under Sections 2.12, 2.14, 8.4 and 9.1 shall continue with respect to events 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 occurrences occurring before or concurrently with its ceasing to be a “Revolving Lender” hereunder, (2) such the Defaulting Lender’s Commitment 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 deemed terminated, allocated among Non-Defaulting Lenders in a manner consistent with Section 2.23(d)(i) (and (3) such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to a parent company of any Revolving Lender shall occur following the date hereof and for so long as such event shall continue, or (ii) a Bankruptcy Event with respect to a parent company of any Roll-Up Lender shall occur following the date hereof and for so long as such event shall continue, Issuer shall not be relieved required to issue, amend or increase any Letter of Credit, the 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 Issuer to defease any risk to it in respect of such Lender hereunder. In the event that Borrowers and 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 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 ▇▇▇▇▇▇’s Commitment Percentages, Roll-Up Commitment Percentages, Revolving Commitment, L/C Commitment and Roll-Up Commitment, as applicable, and on such date such Lender shall purchase at par such of the Revolving Advances and Roll-Up Advances, as applicable, of the other Lenders as Agent shall determine may be necessary in order for such Lender to hold such Revolving Advances and L/C Commitment Advances in accordance with its Ratable 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 hereunder as of a “Revolving Lender” except as 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 Section 8.4(b) this Agreement and Section 9.1 the Other Documents, shall continue with respect to events and occurrences occurring before or concurrently with its ceasing to be alter such obligations, shall operate as a “Revolving Lender” waiver of any default by such Defaulting Lender hereunder, provided that, or shall prejudice any such termination will not be deemed to be a waiver or release of rights which any claim that the Borrower, the Administrative Agent, the Swingline Lender, the Issuing Lender Agent or any Lender may have against any Defaulting Lender as a result of any default by such Defaulting Lender. Notwithstanding anything herein to the contrary, the Non-Defaulting Lenders’ option to take an assignment as provided in Section 2.1(b)(ii)(B) may be exercised by a Non-Defaulting Lender in its sole and absolute discretion and nothing contained herein shall obligate any Non-Defaulting Lender to take any such assignmenthereunder.
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Sources: Credit and Security Agreement
Defaulting Lender. At any time when a Lender is then a Defaulting Lender, the Borrower, at the Borrower’s their election, may elect to terminate such Defaulting Lender’s Commitment hereunder; provided that that, (A) such termination must be of the Defaulting Lender’s entire Commitment, (B) the Non-Defaulting Lenders shall each have the option to accept an assignment all of the Defaulting Lender’s Commitment pursuant to Section 2.15 in lieu of a termination of Commitments pursuant to this Section 2.1(b)(ii)Commitments, (CB) 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 Loan Documents (including principal of and interest on the Revolving Advances Loans owed to such Defaulting Lender, accrued Commitment Fees (subject to Section 2.17(a)(iii2.15(a)(iii)), and letter Letter of credit Credit fees (subject to Section 2.17(a)(iii2.15(a)(iii)) but specifically excluding any amounts owing under Section 2.11 2.10 as result of such payment of such AdvancesLoans) and shall deposit with the Administrative Agent into the Cash Collateral Account cash collateral Cash Collateral in the amount equal to such Defaulting Lender’s ratable share of the Letter of Credit LC Exposure (including any such Letter of Credit Exposure portion thereof that has been reallocated pursuant to Section 2.172.15), (DC) a Defaulting Lender’s Commitment Commitments may be terminated by the Borrower under this this
Section 2.1(b)(ii2.1 (b)(i) if and only if at such time, the Borrower has have elected, or is are then electing, to terminate the Commitments of all then existing Defaulting Lenders, and (ED) such termination shall not be permitted if a no 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 Commitments 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” hereunder for all purposes except that such Lender▇▇▇▇▇▇’s rights and obligations as a Revolving Lender under Sections 2.12Section 2.9, 2.14Section 2.11, 8.4 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 “Revolving Lender” hereunder, (2) such Defaulting Lender’s Commitment Commitments shall be deemed terminated, and (3) such Defaulting Lender shall be relieved of its obligations hereunder as a “Revolving Lender” except as to its obligations under Section 8.4(b) 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 “Revolving Lender” 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 Swingline Lender, the Issuing Lender or any Lender may have against such Defaulting Lender. Notwithstanding anything herein to the contrary, the Non-Defaulting Lenders’ option to take an assignment as provided in Section 2.1(b)(ii)(B) may be exercised by a Non-Defaulting Lender in its sole and absolute discretion and nothing contained herein shall obligate any Non-Defaulting Lender to take any such assignment.
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Defaulting Lender. At Notwithstanding any time when 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 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 5.03 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 BorrowerIssuing Lenders shall not be required to issue, at extend, amend or increase any Letter of Credit, unless the Borrower’s election, may elect to terminate such Defaulting Lender’s Commitment hereunder; provided applicable Issuing Lender is satisfied that (A) such termination must the related exposure will be 100% covered by the Revolving Credit Commitments of the Defaulting Lender’s entire Commitment, (B) the Nonnon-Defaulting Lenders shall each have and/or cash collateral will be provided by the option to accept an assignment of the Defaulting Lender’s Commitment pursuant to Section 2.15 Borrowers in lieu of a termination of Commitments pursuant to accordance with this Section 2.1(b)(ii2.18(c), (C) to the extent that the Nonand participating interests in any such newly issued, extended or increased Letter of Credit shall be allocated among non-Defaulting Lenders do in a manner consistent with Section 2.18(c)(i) (and Defaulting Lenders shall not take an assignment as provided in the immediately preceding clause participate therein); and
(B), the Borrower shall pay all amounts owed by the Borrower e) any amount payable to such Defaulting Lender in hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender’s capacity as a Revolving Lender under this Agreement and under the other Credit Documents (including principal pursuant to Section 2.16(d) but excluding Section 2.17(b)) shall, in lieu of and interest on the Revolving Advances owed being distributed to such Defaulting Lender, accrued Commitment Fees (be retained by the Administrative Agent in a segregated account and, subject to Section 2.17(a)(iii))any applicable requirements of law, and letter be applied at such time or times as may be determined by the Administrative Agent (i) first, to the payment of credit fees (subject to Section 2.17(a)(iii)) but specifically excluding any amounts owing under Section 2.11 as result of by such payment of such Advances) and shall deposit with Defaulting Lender to the Administrative Agent into hereunder, (ii) second, pro rata, to the Cash Collateral Account 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 amount equal 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 ratable share breach of the Letter of Credit Exposure (including any such Letter of Credit Exposure that has been reallocated pursuant to Section 2.17)its obligations under this Agreement, (Dvii) seventh, to the payment of any amounts owing to the Borrowers as a Defaulting Lender’s Commitment may be terminated result of any judgment of a court of competent jurisdiction obtained by the 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) Borrowers against 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) result of such Defaulting Lender’s Commitment shall be deemed terminatedbreach of its obligations under this Agreement, and (3viii) 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 relieved 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 its any Loans, or reimbursement obligations hereunder as a “Revolving Lender” except as to its obligations under Section 8.4(b) and Section 9.1 shall continue with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Revolving Lender” hereunder, provided thatowed to, any such termination will not be deemed to be a waiver or release of any claim Defaulting Lender. In the event that the Borrower, the Administrative Agent, the Swingline 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 Issuing Lender or any Lender may have against LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Defaulting Lender. Notwithstanding anything herein to ’s Revolving Credit Commitment and on such date such Defaulting Lender shall purchase at par such of the contrary, Loans of the Non-Defaulting Lenders’ option to take an assignment other Lenders as provided in Section 2.1(b)(ii)(B) the Administrative Agent shall determine may be exercised by a Non-Defaulting Lender necessary in its sole and absolute discretion and nothing contained herein shall obligate any Non-order for such Defaulting Lender to take any hold such assignmentLoans in accordance with its Applicable Percentage.
Appears in 1 contract
Defaulting Lender. At Notwithstanding any time when 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) unused fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender;
(b) the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders, the Super-Majority Lenders or all Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 12.01); except (i) such Defaulting Lender's Commitment may not be increased or extended without its consent and (ii) the principal amount of, 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 such Defaulting Lender 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 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' Commitments and (y) the conditions set forth in Section 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, Borrowers shall within one Business Day following notice by 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 2.05(j) for so long as such LC Exposure is outstanding;
(iii) if Borrowers cash collateralize any portion of such Defaulting Lender's LC Exposure pursuant to clause (ii) above, Borrowers shall not be required to pay any fees to such Defaulting Lender pursuant to Section 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 clause (i) above, then the fees payable to the Lenders pursuant to Section 2.12(a) and (b) shall be adjusted in accordance with such non-Defaulting Lenders' Applicable Percentages; and
(v) if all or any portion of such Defaulting Lender's LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of Issuing Bank or any other Lender hereunder, all 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 of credit fees payable under Section 2.12(b) with respect to such Defaulting Lender's LC Exposure shall be payable to Issuing Bank until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Lender is a Defaulting Lender, the BorrowerSwingline Lender shall not be required to fund any Swingline Loan and Issuing Bank shall not be required to issue, at amend or increase any Letter of Credit, unless, in each case, it is satisfied that the Borrower’s election, may elect to terminate such Defaulting Lender’s Commitment hereunder; provided that (A) such termination must be of related exposure and the Defaulting Lender’s entire Commitment, (B) 's then outstanding LC Exposure will be 100% covered by the NonCommitments of the non-Defaulting Lenders shall each have the option to accept an assignment of the Defaulting Lender’s Commitment pursuant to and/or cash collateral will be provided by Borrowers in accordance with Section 2.15 in lieu of a termination of Commitments pursuant to this Section 2.1(b)(ii4.08(c), (C) to the extent that the Nonand participating interests in any newly made Swingline Loan or any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders do not take an assignment as provided in the immediately preceding clause a manner consistent with Section 4.08(c)(i) (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 2.17(a)(iii)), and letter of credit fees (subject to Section 2.17(a)(iii)) but specifically excluding any amounts owing under Section 2.11 as result of such payment of such Advances) and shall deposit with 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 2.17), (D) a Defaulting Lender’s Commitment may be terminated by the 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 not participate therein). If (i) a Bankruptcy Event with respect to a Parent of any Lender shall occur following the date hereof and for so long as such event shall continue or (ii) Swingline 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, Swingline Lender shall not be required to fund any Swingline Loan and Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless 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 defease any risk to it in respect of such Lender hereunder. In the event that Administrative Agent, Borrowers, Swingline Lender and Issuing Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a “Revolving Defaulting Lender” hereunder for all purposes except that , then Swingline Exposure and LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s rights 's Commitment and obligations on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as a Revolving Administrative Agent shall determine may be necessary in order for such Lender under Sections 2.12, 2.14, 8.4 and 9.1 shall continue with respect to events and occurrences occurring before or concurrently hold such Loans in accordance with its ceasing to be a “Revolving Lender” hereunder, (2) such Defaulting Lender’s Commitment shall be deemed terminated, and (3) such Defaulting Lender shall be relieved of its obligations hereunder as a “Revolving Lender” except as to its obligations under Section 8.4(b) and Section 9.1 shall continue with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Revolving Lender” 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 Swingline Lender, the Issuing Lender or any Lender may have against such Defaulting Lender. Notwithstanding anything herein to the contrary, the Non-Defaulting Lenders’ option to take an assignment as provided in Section 2.1(b)(ii)(B) may be exercised by a Non-Defaulting Lender in its sole and absolute discretion and nothing contained herein shall obligate any Non-Defaulting Lender to take any such assignmentApplicable Percentage.
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Defaulting Lender. At Notwithstanding any time when 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 Available Unused Commitment of such Defaulting Lender;
(b) Any Revolving Facility Commitment or any Revolving Facility Loan of such Defaulting Lender shall not be included in determining whether the Required Lenders, Required Tranche A Lenders, Special Majority Lenders or Super Majority Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 9.08); provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender under Section 9.04(a)(i) or subclauses (i), through (ix) of the first proviso to Section 9.08(b);
(c) If any 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 Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Revolving Facility Percentages of Tranche A Revolving Facility Commitments but only to the extent the sum of all non-Defaulting Lenders’ Tranche A Revolving Facility Exposure plus such Defaulting Lender’s Swingline Exposure and Revolving L/C Exposure does not exceed the total of all non-Defaulting Lenders’ Tranche A Revolving Facility Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the applicable 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 applicable Issuing Bank only such Borrower’s obligations corresponding to such Defaulting Lender’s 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 2.05(j) for so long as such Revolving L/C Exposure is outstanding;
(iii) if any Borrower Cash Collateralizes any portion of such Defaulting Lender’s Revolving L/C Exposure pursuant to subclause (ii) above, such Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.12 with respect to such Defaulting Lender’s Revolving L/C Exposure during the period such Defaulting Lender’s Revolving L/C Exposure is Cash Collateralized;
(iv) if the Revolving L/C Exposure of the non-Defaulting Lenders is reallocated pursuant to subclause (i) above, then the fees payable to the Lenders pursuant to Section 2.12 shall be adjusted in accordance with such non-Defaulting Lenders’ Revolving Facility Percentages with respect to Tranche A Revolving Facility Commitments; and
(v) if all or any portion of such Defaulting Lender’s Revolving L/C Exposure is neither reallocated nor Cash Collateralized pursuant to subclause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all fees payable under Section 2.12 with respect to such Defaulting Lender’s Revolving L/C Exposure shall be payable to such Issuing Bank until and to the extent that such Revolving L/C Exposure is reallocated and/or Cash Collateralized; and
(d) So long as such Lender is a Defaulting Lender, the BorrowerSwingline Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, at amend or increase any Letter of Credit, unless it is satisfied that the Borrower’s election, may elect to terminate such Defaulting Lender’s Commitment hereunder; provided that (A) such termination must be of related exposure and the Defaulting Lender’s entire Commitment, (B) then outstanding Revolving L/C Exposure will be 100% covered by the NonTranche A Revolving Facility Commitments of the non-Defaulting Lenders shall each have and/or Cash Collateral will be provided by the option to accept an assignment of the Defaulting Lender’s Commitment pursuant to Borrower in accordance with Section 2.15 in lieu of a termination of Commitments pursuant to this Section 2.1(b)(ii2.21(c), (C) to the extent that the Nonand participating interests in any newly made Swingline Loan or any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders do not take an assignment as provided in the immediately preceding clause a manner consistent with Section 2.21(c)(i) (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 2.17(a)(iii)), and letter of credit fees (subject to Section 2.17(a)(iii)) but specifically excluding any amounts owing under Section 2.11 as result of such payment of such Advances) and shall deposit with 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 2.17), (D) a Defaulting Lender’s Commitment may be terminated by the 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 not participate therein).
(e) In the event 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 Commitment shall be deemed terminated, and (3) such Defaulting Lender shall be relieved of its obligations hereunder as a “Revolving Lender” except as to its obligations under Section 8.4(b) and Section 9.1 shall continue with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Revolving Lender” 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 Borrowers, the Swingline Lender and the Issuing Banks 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 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 (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 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 9.06 shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Issuing Bank or the Swingline Lender hereunder; third, to Cash Collateralize the Revolving L/C Exposure of such Defaulting Lender in 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; fifth, to be held in a deposit account 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 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, the Issuing Banks or the Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, the Issuing Banks or the Swingline Lender or any Lender may have against such Defaulting Lender as a result of such Defaulting Lender. Notwithstanding anything herein ’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default exists, to the contrarypayment of any amounts owing to the applicable Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, the Non-to such Defaulting Lenders’ option to take an assignment Lender or as provided in Section 2.1(b)(ii)(B) may be exercised otherwise directed by a Non-court of competent jurisdiction. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender in its sole and absolute discretion and nothing contained herein shall obligate any Non-that are applied (or held) to pay amounts owed by a Defaulting Lender or to take any post Cash Collateral pursuant to this Section 2.21 shall be deemed paid to and redirected by such assignmentDefaulting Lender, and each Lender irrevocably consents hereto.
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Sources: Asset Based Revolving Credit Agreement (Momentive Performance Materials Inc.)
Defaulting Lender. At any time when a Lender is then a Defaulting Lender, the Borrower, at the Borrower’s election, may elect to terminate such Defaulting Lender’s Commitment hereunder; provided that (A) such termination must be of the 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 2.15 in lieu of a termination of Commitments pursuant to this Section 2.1(b)(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 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 2.17(a)(iii)), and letter of credit fees (subject to Section 2.17(a)(iii)) but specifically excluding any amounts owing under Section 2.11 as result of such payment of such Advances) and shall deposit with 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 2.17), (D) a Defaulting Lender’s Commitment may be terminated by the 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 Commitment shall be deemed terminated, and (3) such Defaulting Lender shall be relieved of its obligations hereunder as a “Revolving Lender” except as to its obligations under Section 8.4(b) and Section 9.1 shall continue with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Revolving Lender” 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 Swingline 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, and if any Letter of Credit Liabilities exist at the Nontime a Lender becomes a Defaulting Lender then:
(a) all or any part of such Letter of Credit Liabilities of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Percentages (calculated without regard to such Defaulting Lender’s Percentage) but only to the extent (x) the sum of all non-Defaulting Lenders’ option to take an assignment as provided Loans plus all non-Defaulting Lenders’ Letter of Credit Liabilities plus such Defaulting Lender’s Letter of Credit Liabilities does not exceed the total of all non-Defaulting Lenders’ Commitments and (y) the conditions set forth in Section 2.1(b)(ii)(B5.2 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
(b) may if the reallocation described in clause (i) above cannot, or can only partially, be exercised effected, the Borrower shall within one Business Day following notice by a Nonthe Administrative Agent cash collateralize such Defaulting Lender’s Letter of Credit Liabilities (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.7.4 for so long as such Letter of Credit Liability is outstanding;
(c) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit Liability pursuant to Section 2.7.4, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 3.3.3 with respect to the cash collateralized portion of such Defaulting Lender’s Letter of Credit Liabilities during the period such Defaulting Lender’s Letter of Credit Liabilities are cash collateralized;
(d) if the Letter of Credit Liabilities of the non-Defaulting Lender Lenders are reallocated pursuant to Section 2.7.7, then the fees payable to the Lenders pursuant to Section 3.3.3 shall be adjusted to give effect to such reallocations in its sole and absolute discretion and nothing contained herein shall obligate any Nonaccordance with such non-Defaulting Lenders’ Percentages; or
(e) if any Defaulting Lender’s Letter of Credit Liabilities is neither cash collateralized nor reallocated pursuant to Section 2.7.7, then, without prejudice to any rights or remedies of the Issuer or any Lender hereunder, all letter of credit fees payable under Section 3.3.3 with respect to take any such assignmentDefaulting Lender’s Letter of Credit Liabilities shall be payable to the Issuer until such Letter of Credit Liabilities are cash collateralized and/or reallocated;.
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Defaulting Lender. At Notwithstanding any time when a provisions of this Agreement to the contrary, if any Lender is then becomes a Defaulting Lender, then the Borrowerfollowing provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) Fees shall cease to accrue on the unfunded portion of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a).
(b) The Commitment and the LC Exposure of such Defaulting Lender shall not be included in determining whether all 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 9.02), 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) 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 Borrowertime 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 (A) the sum of all non-Defaulting Lenders’ Revolving Exposures plus 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 electionLC Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments and (B) the conditions set forth in Section 4.02 are satisfied at such time;
(ii) if the reallocation described in paragraph (i) above cannot, may elect or can only partially, be effected, the Borrowers shall within one Business Day following notice by the Administrative Agent (A) first, prepay the amount of the Swingline Loans equal to terminate 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 Commitment hereunder; provided that LC Exposure (Aafter giving effect to any partial reallocation pursuant to paragraph (i) above) in accordance with the procedures set forth in Sections 2.06(j) and for so long as any such termination must be of the LC Exposure is outstanding and (C) third, cash collateralize such Defaulting Lender’s entire Commitment, Applicable Percentage (Bcalculated 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 Non-Defaulting Lenders shall each have the option to accept an assignment Borrowers cash collateralize any portion of the such Defaulting Lender’s Commitment pursuant to Section 2.15 in lieu of a termination of Commitments LC Exposure pursuant to this Section 2.1(b)(ii), (C) to the extent that the Non-Defaulting Lenders do not take an assignment as provided in the immediately preceding clause (B2.22(d), the Borrower Borrowers shall not be required to pay all amounts owed by the Borrower any fees 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 pursuant to Section 2.17(a)(iii)), and letter of credit fees (subject to Section 2.17(a)(iii)2.12(b) but specifically excluding any amounts owing under Section 2.11 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 respect to such Defaulting Lender’s ratable share of LC Exposure during the Letter of Credit Exposure (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 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) period such Defaulting Lender’s Commitment LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders are reallocated pursuant to this Section 2.22(d), then the fees payable to the Lenders pursuant to Sections 2.12(a) and (b), as the case may be, shall be deemed terminatedadjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; or
(v) if any Defaulting Lender’s LC Exposure is not cash collateralized, and (3) such Defaulting prepaid or reallocated pursuant to this Section 2.22(d), then, without prejudice to any rights or remedies of the applicable Issuing Bank or any Lender shall be relieved hereunder, all letter of its obligations hereunder as a “Revolving Lender” except as to its obligations credit fees payable under Section 8.4(b2.12(b) and Section 9.1 shall continue with respect to events such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank until such Defaulting Lender’s LC Exposure is cash collateralized.
(e) So long as any Lender is Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and occurrences occurring before no Issuing Bank shall be required to issue, extend, create, incur, amend or concurrently increase any Letter of Credit unless it is reasonably satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers in accordance with its ceasing to be a “Revolving Lender” hereunderSection 2.22(d), provided that, and participating interests in any such termination will newly issued, extended or created Letter of Credit or newly made Swingline Loan shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.22(d)(i) (and Defaulting Lenders shall not be deemed to be a waiver or release of any claim participate therein).
(f) In the event that the Borrower, the Administrative Agent, the Swingline LenderBorrowers, the Issuing Banks and the Swingline Lender or any each agrees that a Defaulting Lender may have against has adequately remedied all matters that caused such Lender to be a Defaulting Lender. Notwithstanding anything herein , then the Applicable Percentage of Swingline Loans and Protective Advances and LC Exposure of the Lenders shall be readjusted to reflect the contrary, inclusion of such Lender’s Commitment and on such date such Lender shall purchase at par such of the Non-Defaulting Lenders’ option to take an assignment Loans of the other Lenders (other than Swingline Loans) or participations in Loans as provided in Section 2.1(b)(ii)(B) the Administrative Agent shall determine may be exercised by a Non-Defaulting Lender necessary in its sole and absolute discretion and nothing contained herein shall obligate any Non-Defaulting order for such Lender to take any hold such assignmentLoans or participations in accordance with its Applicable Percentage.
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Defaulting Lender. At any time when a Lender is then a Defaulting Lender, the Borrower, at the Borrower’s election, may elect to terminate such Defaulting Lender’s Commitment hereunder; provided that (A) the Borrower must elect to terminate such termination must be of the 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 2.15 in lieu of a termination of Commitments pursuant to this Section 2.1(b)(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 to the Administrative Agent all amounts owed by the Borrower to such Defaulting Lender in such Defaulting Lender’s its 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 2.17(a)(iii)), and letter of credit fees (subject to Section 2.17(a)(iii)) but specifically excluding any amounts owing under Section 2.11 2.10 as result of such payment of such Advancespayment) and shall 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 (including after giving effect to any such Letter of Credit Exposure that has been reallocated partial reallocation pursuant to Section 2.172.16), (DC) a Defaulting Lender’s Commitment may be terminated by the 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, Lenders and (ED) such termination shall not be permitted if a Default has occurred and is continuing at the time of such election and terminationcontinuing. Upon written notice to the Defaulting Lender and the Administrative Agent of the Borrower’s election to terminate a such 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 2.122.11, 2.142.13, 8.4 and 9.1 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 Commitment shall be deemed terminated, terminated in whole and (3) such Defaulting Lender shall be relieved of its obligations hereunder as a “Revolving Lender” except as to its obligations under Section 8.4(b) and Section 9.1 shall continue 8.4 with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Revolving Lender” hereunder, provided that, that any such termination will not be deemed to be a waiver or release of any claim that by the Borrower, the Administrative Agent, the Swingline Swing Line Lender, the Issuing Lender or any Lender may have against such Defaulting Lender. Notwithstanding anything herein to the contrary, the Non-Defaulting Lenders’ option to take an assignment as provided in Section 2.1(b)(ii)(B) may be exercised by a Non-Defaulting Lender in its sole and absolute discretion and nothing contained herein shall obligate any Non-Defaulting Lender to take any such assignment.
Appears in 1 contract
Defaulting Lender. At Notwithstanding any time when 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) unused fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 2.12(a);
(b) the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders, the Super-Majority Lenders or all Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 12.01); provided that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender affected thereby;
(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 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 that such reallocation does not, as to any non-Defaulting Lender, cause such non-Defaulting Lender’s Revolving Credit Exposure to exceed its Commitment and (y) if the conditions set forth in Section 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, Borrowers shall within one Business Day following notice by 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 2.05(j) for so long as such LC Exposure is outstanding;
(iii) if Borrowers cash collateralize any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, Borrowers shall not be required to pay any fees to such Defaulting Lender pursuant to Section 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 clause (i) above, then the fees payable to the Lenders pursuant to Section 2.12(a) and (b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of Issuing Bank or any other Lender hereunder, all 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) andletter of credit fees payable under Section 2.12(b)with respect to such Defaulting Lender’s LC Exposure shall be payable to Issuing Bank until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Lender is a Defaulting Lender, the BorrowerSwingline Lender shall not be required to fund any Swingline Loan and Issuing Bank shall not be required to issue, at amend or increase any Letter of Credit, unless, in each case, it is satisfied that the Borrower’s election, may elect to terminate such Defaulting Lender’s Commitment hereunder; provided that (A) such termination must be of related exposure and the Defaulting Lender’s entire Commitment, (B) then outstanding LC Exposure will be 100% covered by the NonCommitments of the non-Defaulting Lenders shall each have the option to accept an assignment of the Defaulting Lender’s Commitment pursuant to and/or cash collateral will be provided by Borrowers in accordance with Section 2.15 in lieu of a termination of Commitments pursuant to this Section 2.1(b)(ii4.08(c), (C) and Swingline Exposure related to the extent that the Nonany newly made Swingline Loan or LC Exposure related to any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders do not take an assignment as provided in the immediately preceding clause a manner consistent with Section 4.08(c)(i) (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 2.17(a)(iii)), and letter of credit fees (subject to Section 2.17(a)(iii)) but specifically excluding any amounts owing under Section 2.11 as result of such payment of such Advances) and shall deposit with 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 2.17), (D) a Defaulting Lender’s Commitment may be terminated by the 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 not participate therein). If (i) a Bankruptcy Event with respect to a Parent of any Lender shall occur following the date hereof and for so long as such event shall continue or (ii) Swingline 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, Swingline Lender shall not be required to fund any Swingline Loan and Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless 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 defease any risk to it in respect of such Lender hereunder. In the event that Administrative Agent, Borrowers, Swingline Lender and Issuing Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a “Revolving Defaulting Lender” hereunder for all purposes except that , then Swingline Exposure and LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s rights Commitment and obligations on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as a Revolving Administrative Agent shall determine may be necessary in order for such Lender under Sections 2.12, 2.14, 8.4 and 9.1 shall continue with respect to events and occurrences occurring before or concurrently hold such Loans in accordance with its ceasing to be a “Revolving Lender” hereunder, (2) such Defaulting Lender’s Commitment shall be deemed terminated, and (3) such Defaulting Lender shall be relieved of its obligations hereunder as a “Revolving Lender” except as to its obligations under Section 8.4(b) and Section 9.1 shall continue with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Revolving Lender” 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 Swingline Lender, the Issuing Lender or any Lender may have against such Defaulting Lender. Notwithstanding anything herein to the contrary, the Non-Defaulting Lenders’ option to take an assignment as provided in Section 2.1(b)(ii)(B) may be exercised by a Non-Defaulting Lender in its sole and absolute discretion and nothing contained herein shall obligate any Non-Defaulting Lender to take any such assignmentApplicable Percentage.
Appears in 1 contract
Sources: Revolving Credit Agreement (FelCor Lodging Trust Inc)
Defaulting Lender. At 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) fees shall cease to accrue on the Available Commitment of such Defaulting Lender under Section 4.1(a);
(b) the Commitment and Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 13.1), 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 applicable Lender shall require the consent of such Defaulting Lender;
(c) if any Swingline Loan or Letter of Credit is oustanding at the time when a Lender becomes a Defaulting Lender then:
(i) all or any part of such 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’ Credit Exposures plus such Defaulting Lender’s Swingline Exposure and Letter of Credit Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments and (y) the conditions set forth in Section 7 are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within 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 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 5.2(a) for so long as such Letter of Credit Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit Exposure pursuant to this Section 2.14(c), the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(b) with respect to such cash collateralized portion of such Defaulting Lender’s Letter of Credit Exposure during the period such Letter of Credit Exposure is cash collateralized;
(iv) to the extent the Letter of Credit Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.14(c), then the fees payable to the Lenders pursuant to Section 4.1(a) and Section 4.1(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages;
(v) to the extent any Defaulting Lender’s Letter of Credit Exposure is neither cash collateralized nor reallocated pursuant to this Section 2.14(c), then, without prejudice to any rights or remedies of the Letter of Credit Issuer or any Lender hereunder, all fees that would have otherwise been payable to such Defaulting Lender 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 Letter of Credit Exposure is cash collateralized or reallocated;
(vi) so long as any Lender is a Defaulting Lender, the BorrowerSwingline Lender shall not be required to fund any Swingline Loan and the Letter of Credit Issuer shall not be required to issue, at amend or increase any Letter of Credit, in each case, to the Borrower’s election, may elect to terminate such Defaulting Lender’s Commitment hereunder; provided that extent (Ax) such termination must be of the Defaulting Lender’s entire Commitment, Applicable Percentage of such Swingline Loans or Letter of Credit can not be reallocated pursuant to Section 2.14(c) or (By) the Non-Defaulting Lenders shall each have Swingline Lender or Letter of Credit Issuer, as applicable, has not otherwise entered into arrangements satisfactory to it and the option Borrower to accept an assignment eliminate the Swingline Lender or Letter of Credit Issuer’s risk with respect to the Defaulting Lender’s Commitment pursuant to Section 2.15 participation in lieu Swingline Loans or Letters of a termination of Commitments pursuant to this Section 2.1(b)(ii), Credit; and
(Cvii) 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 any amount payable to such Defaulting Lender in hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender’s capacity as a Revolving Lender under this Agreement and under the other Credit Documents (including principal pursuant to Section 13.8(b) but excluding Section 13.7) shall, in lieu of and interest on the Revolving Advances owed being distributed to such Defaulting Lender, accrued Commitment Fees (be retained by the Administrative Agent in a segregated account and, subject to Section 2.17(a)(iii))any applicable requirements of law, and letter be applied at such time or times as may be determined by the Administrative Agent (i) first, to the payment of credit fees (subject to Section 2.17(a)(iii)) but specifically excluding any amounts owing under Section 2.11 as result of by such payment of such Advances) and shall deposit with Defaulting Lender to the Administrative Agent into hereunder, (ii) second, pro rata, to the Cash Collateral Account payment of any amounts owing by such Defaulting Lender to the Letter of Credit Issuer or Swingline Lender hereunder, (iii) third, if so determined by the Administrative Agent or requested by 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 amount equal 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, 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, in respect of obligations under this Agreement, a Letter of Credit Issuer or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, such Letter of Credit Issuer or Swingline Lender against such Defaulting Lender as a result of such Defaulting Lender’s ratable share breach of its obligations under this Agreement, (vii) seventh, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting 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 drawings in respect of 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 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; and
(d) in the event that the Administrative Agent, the Borrower, the Letter of Credit Exposure (including any Issuer and the Swingline Lender each agree that a Defaulting Lender has adequately remedied all matters that caused such Letter of Credit Exposure that has been reallocated pursuant Lender to Section 2.17), (D) be a Defaulting Lender’s Commitment may be terminated by the Borrower under this Section 2.1(b)(ii) if and only if at , then 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 Defaulting Lender” hereunder for all purposes except that , and the Swingline Exposure and Letter of Credit Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s rights Commitment and obligations on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as a Revolving the Administrative Agent shall determine may be necessary in order for such Lender under Sections 2.12, 2.14, 8.4 and 9.1 shall continue with respect to events and occurrences occurring before or concurrently hold such Loans in accordance with its ceasing to be a “Revolving Lender” hereunder, (2) such Defaulting Lender’s Commitment shall be deemed terminated, and (3) such Defaulting Lender shall be relieved of its obligations hereunder as a “Revolving Lender” except as to its obligations under Section 8.4(b) and Section 9.1 shall continue with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Revolving Lender” 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 Swingline Lender, the Issuing Lender or any Lender may have against such Defaulting Lender. Notwithstanding anything herein to the contrary, the Non-Defaulting Lenders’ option to take an assignment as provided in Section 2.1(b)(ii)(B) may be exercised by a Non-Defaulting Lender in its sole and absolute discretion and nothing contained herein shall obligate any Non-Defaulting Lender to take any such assignmentApplicable Percentage.
Appears in 1 contract
Sources: Credit Agreement (Accellent Inc)
Defaulting Lender. At 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) fees shall cease to accrue on the unfunded portion of any Commitment of such Defaulting Lender pursuant to this Agreement; HOU:0050320/00182:1451919v12
(b) the Commitments and Obligations of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 9.02), 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 when a Lender becomes a Defaulting Lender then:
(i) all or any part of such Swingline Exposure and LC Exposure shall be reallocated among the Lenders which are not Defaulting Lenders (the “Non-Defaulting Lenders”) in accordance with their respective Applicable Percentages but only to the extent the sum of all Non-Defaulting Lenders’ Revolving Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the total of all Non-Defaulting Lenders’ Commitments; and
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the 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(j) for so long as such LC Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to this Section 2.20(c), the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 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 2.20(c), then the fees payable to the Lenders pursuant to Section 2.11 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 2.20(c), then, without prejudice to any rights or remedies of the Issuing Bank or any Lender hereunder, all fees that otherwise would have been payable to such Defaulting Lender with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Bank until such LC Exposure is cash collateralized and/or reallocated;
(d) so long as any Lender is a Defaulting Lender, the BorrowerSwingline Lender shall not be required to fund any Swingline Loan and the Issuing Bank shall not be required to issue, at amend or increase any Letter of Credit, unless it is satisfied that the Borrower’s election, may elect to terminate such Defaulting Lender’s Commitment hereunder; provided that (A) such termination must related exposure will be 100% covered by the Commitments of the Defaulting Lender’s entire Commitment, (B) the Nonnon-Defaulting Lenders shall each have and/or cash collateral will be provided by the option to accept an assignment of the Defaulting Lender’s Commitment pursuant to Borrower in accordance with Section 2.15 in lieu of a termination of Commitments pursuant to this Section 2.1(b)(ii2.20(c), (C) to the extent that the Nonand participating interests in any such newly issued or increased Letter of Credit or newly made Swingline Loan shall be allocated HOU:0050320/00182:1451919v12 among non-Defaulting Lenders do in a manner consistent with Section 2.20(c)(i) (and Defaulting Lenders shall not take an assignment as provided in the immediately preceding clause participate therein); and
(B), the Borrower shall pay all amounts owed by the Borrower e) any amount payable to such Defaulting Lender in hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender’s capacity as a Revolving Lender under this Agreement and under the other Credit Documents (including principal pursuant to Section 2.17) shall, in lieu of and interest on the Revolving Advances owed being distributed to such Defaulting Lender, accrued Commitment Fees (be retained by the Administrative Agent in a segregated account and, subject to Section 2.17(a)(iii))any applicable requirements of law, and letter be applied at such time or times as may be determined by the Administrative Agent (i) first, to the payment of credit fees (subject to Section 2.17(a)(iii)) but specifically excluding any amounts owing under Section 2.11 as result of by such payment of such Advances) and shall deposit with Defaulting Lender to the Administrative Agent into hereunder, (ii) second, pro rata, to the Cash Collateral Account payment of any amounts owing by such Defaulting Lender to the Issuing Bank or Swingline Lender hereunder, (iii) third, 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, (iv) fourth, if so determined by the Administrative Agent and the Borrower, held in such account as cash collateral in for future funding obligations of the amount equal Defaulting Lender under this Agreement, (v) fifth, pro rata, to the payment of any amounts owing to the Borrower or the Lenders as a result of any judgment of a court of competent jurisdiction obtained by the Borrower or any Lender against such Defaulting Lender as a result of such Defaulting Lender’s ratable share breach of the Letter of Credit Exposure (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 Borrower its obligations under this Section 2.1(b)(iiAgreement and (vi) if and only if at such time, the Borrower has elected, or is then electingsixth, 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 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 which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 4.02 are satisfied, such payment shall cease be applied solely to be a “Revolving Lender” hereunder for prepay the Loans of, and reimbursement obligations owed to, all purposes except that such Lender’s rights and Non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations as a Revolving Lender under Sections 2.12owed to, 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 any Defaulting Lender’s Commitment shall be deemed terminated, and (3) such Defaulting Lender shall be relieved of its obligations hereunder as a “Revolving Lender” except as to its obligations under Section 8.4(b) and Section 9.1 shall continue with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Revolving Lender” hereunder, provided that, any such termination will not be deemed to be a waiver or release of any claim . In the event that the Borrower, the Administrative Agent, the Swingline LenderBorrower, the Issuing Bank and the Swingline Lender or any each agrees that a Defaulting Lender may have against has adequately remedied all matters that caused such Lender to be a Defaulting Lender. Notwithstanding anything herein , then the Swingline Exposure and LC Exposure of the Lenders shall be readjusted to reflect the contrary, inclusion of such Lender’s Commitment and on such date such Lender shall purchase at par such of the Non-Defaulting Lenders’ option to take an assignment Loans of the other Lenders (other than Swingline Loans) as provided in Section 2.1(b)(ii)(B) the Administrative shall determine may be exercised by a Non-Defaulting Lender necessary in its sole and absolute discretion and nothing contained herein shall obligate any Non-Defaulting order for such Lender to take any hold such assignmentLoans in accordance with its Applicable Percentage.
Appears in 1 contract
Defaulting Lender. At 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) if any Swingline Loans are outstanding or any Letter of Credit Outstandings exist at the time when a Revolving Lender becomes a Defaulting Lender then:
(i) all or any part of the participating risk in such Swingline Loans and Letter of Credit Outstandings shall be reallocated among the Revolving Lenders that are Non-Defaulting Revolving Lenders pro rata in accordance with their respective RL Percentage but only to the extent (x) the sum of all Revolving Extensions of Credit of all Revolving Lenders that are Non-Defaulting Revolving Lenders does not exceed the aggregate amount of all Revolving 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 of such Revolving Lender do not exceed its Revolving Loan Commitment at such time and (z) the conditions set forth in Section 7.2 are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one (1) Business Day following notice by the Administrative Agent (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 RL Percentage of all Letter of Credit Outstandings (after giving effect to any partial reallocation pursuant to clause (i) above) for so long as such Letter of Credit Outstandings exist;
(iii) the Borrower shall not be required to pay any Letter of Credit Fees to such Defaulting Lender pursuant to Section 4.1(b) with respect to such Defaulting Lender’s RL Percentage of Letter of Credit Outstandings;
(iv) if the participating risk in Letter of Credit Outstandings of the Non-Defaulting Lenders is reallocated pursuant to this Section 2.17(a), then the Letter of Credit Fees payable to the Revolving Lenders pursuant to Section 4.1(b) shall be adjusted in accordance with such Non-Defaulting Lenders’ RL Percentages; and
(v) if any Defaulting Lenders’ RL Percentage of Letter of Credit Outstandings is neither Collateralized nor reallocated pursuant to this Section 2.17(a), then, without prejudice to Table of Contents any rights or remedies of any Issuing Lender or any Revolving Lender hereunder, all Letter of Credit Fees payable under Section 4.1(b) with respect to such Defaulting Lender’s RL Percentage of Letter of Credit Outstandings shall be payable to each Issuing Lender until such portion of such Letter of Credit Outstandings is Collateralized and/or reallocated.
(b) 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 Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Lender shall be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Revolving 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 ratably in accordance with 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 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 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 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 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.
(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 other amounts received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Section 11 or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 13.2 shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to each Issuing Lender or the Swingline Lender hereunder; third, to Cash Collateralize each Issuing Lender’s Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.17(a)(ii); fourth, Table of Contents 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; fifth, if so determined by the Administrative Agent and the Borrower, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations 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 Credit issued under this Agreement, in accordance with Section 2.17(a)(ii); sixth, to the payment of any amounts owing to the Lenders, each Issuing Lender or the Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, Issuing Lender or Swingline Lender against such Defaulting Lender as a result of such 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 as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such 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 reimbursement obligations with respect to Letters of Credit in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 7.2 were satisfied and waived, such payment shall be applied solely to pay the Loans of, and reimbursement obligations with respect to Letters of Credit owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or reimbursement obligations with respect to Letters of Credit owed to, such Defaulting Lender 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). 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 2.17(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 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 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 BorrowerAdministrative Agent will so notify the parties hereto, at the Borrower’s election, may elect to terminate such Defaulting Lender’s Commitment hereunder; provided that (A) such termination must be whereupon as of the Defaulting Lender’s entire Commitment, effective date specified in such notice and subject to Table of Contents any conditions set forth therein (B) the Non-Defaulting Lenders shall each have the option which may include arrangements with respect to accept an assignment of the Defaulting Lender’s Commitment pursuant to Section 2.15 in lieu of a termination of Commitments pursuant to this Section 2.1(b)(iiany Cash Collateral), (C) that Lender will, to the extent applicable, purchase at par that portion of outstanding Loans of the Non-Defaulting other Lenders do not or take an assignment such other actions as provided the Administrative Agent may determine to be necessary to cause the Loans and funded and unfunded participations in the immediately preceding clause (B), the Borrower shall pay all amounts owed Letters of Credit and Swingline Loans to be held pro rata by the Borrower to such Defaulting Lender Lenders in such Defaulting Lender’s capacity as a Revolving Lender under this Agreement and under accordance with the other Credit Documents applicable Commitments (including principal of and interest on the Revolving Advances owed to such Defaulting Lender, accrued Commitment Fees (subject without giving effect to Section 2.17(a)(iii2.17(a)(i)), and letter of credit fees (subject to Section 2.17(a)(iii)) but specifically excluding any amounts owing under Section 2.11 as result of whereupon 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 2.17), (D) a Defaulting Lender’s Commitment may be terminated by the 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 will cease to be a “Revolving Defaulting Lender” hereunder for all purposes except ; provided that such Lender’s rights and obligations as a Revolving Lender under Sections 2.12, 2.14, 8.4 and 9.1 shall continue no adjustments will be made retroactively with respect to events and occurrences occurring before fees accrued or concurrently with its ceasing to be payments made by or on behalf of the Borrower while that Lender was a “Revolving Lender” hereunder, (2) such Defaulting Lender’s Commitment shall be deemed terminated; provided further that except to the extent otherwise expressly agreed by the affected parties, and (3) such no change hereunder from Defaulting Lender shall be relieved of its obligations hereunder as a “Revolving Lender” except as to its obligations under Section 8.4(b) and Section 9.1 shall continue with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Revolving Lender” hereunder, provided that, any such termination Lender will not be deemed to be constitute a waiver or release of any claim of any party hereunder arising from that the Borrower, the Administrative Agent, the Swingline Lender, the Issuing Lender or any Lender may have against such having been a Defaulting Lender. Notwithstanding anything herein to the contrary, the Non-Defaulting Lenders’ option to take an assignment as provided in Section 2.1(b)(ii)(B) may be exercised by a Non-Defaulting Lender in its sole and absolute discretion and nothing contained herein shall obligate any Non-Defaulting Lender to take any such assignment.
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Defaulting Lender. At Notwithstanding any time when a provision of this Agreement to the contrary, if any Lender is then becomes a Defaulting Lender, then the Borrower, at following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) Fees shall cease to accrue on the Borrower’s election, may elect to terminate unfunded portion of the Commitment of such Defaulting Lender’s .
(b) The Commitment hereunderamounts outstanding on the Loans of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 9.11); provided that this clause (Ab) such termination must be 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 (ii) described in clause (i) or (ii) of the first proviso in Section 9.11.
(c) If any L/C Exposure exists at the time such Lender becomes a Defaulting Lender’s entire Commitment, Lender then:
(Bi) all or any part of the NonL/C Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting 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 pursuant to this Section 2.1(b)(ii), accordance with their respective Pro Rata Shares (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 2.17(a)(iii)), and letter of credit fees (subject to Section 2.17(a)(iii)) but specifically excluding any amounts owing under Section 2.11 as result of such payment of such Advances) and shall deposit with the Administrative Agent into the Cash Collateral Account cash collateral in the amount equal calculated without regard to such Defaulting Lender’s ratable share Commitment) but only to the extent the sum of the Letter of all non-Defaulting Lenders’ Credit Exposure (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 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) plus such Defaulting Lender’s Commitment L/C Exposure does not exceed the total of all non-Defaulting Lenders’ Commitment. Subject to Section 16.1, no reallocation hereunder shall be deemed terminated, and (3) such Defaulting Lender shall be relieved of its obligations hereunder as a “Revolving Lender” except as to its obligations under Section 8.4(b) and Section 9.1 shall continue with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Revolving Lender” hereunder, provided that, any such termination will not be deemed to be 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;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent, cash collateralize for the benefit of the Issuing Lender only the Borrower’s obligations corresponding to such Defaulting Lender’s L/C Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in 2.2.9 for so long as such L/C Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s L/C Exposure pursuant to clause (ii) above, the Borrower shall not be required to pay any fees to such Defaulting Lender with respect to such Defaulting Lender’s L/C Exposure during the period such Defaulting Lender’s L/C Exposure is cash collateralized;
(iv) if the L/C Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders shall be adjusted in accordance with such non-Defaulting Lenders’ Pro Rata Shares; and
(v) if all or any portion of such Defaulting Lender’s L/C Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of the Issuing Lender or any other Lender hereunder, all fees payable under Section 3.3(a) with respect to such Defaulting Lender’s L/C Exposure shall be payable to the Issuing Lender until and to the extent that such L/C Exposure is reallocated and/or cash collateralized.
(d) So long as any Lender is a Defaulting Lender, any Issuing Lender shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrower.
(e) Any amount payable to such Defaulting Lender 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 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, to the payment of any amounts owing by such Defaulting Lender to any Issuing Lender hereunder, (iii) third, to the cash collateralization of any participating interest in any Letter of Credit (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, held in such account as cash collateral 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 Credit issued under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders or the Issuing Lenders as a result of any judgment of a court of competent jurisdiction obtained by any Lender or 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 Borrower as a result of any judgment of a court of competent jurisdiction obtained by the 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 a payment of the principal amount of any Loans or Letters of Credit in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 4.2 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and participating interests in any Letter of Credit owed to, all non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or 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 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 Swingline Borrower and the Issuing Lender each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the L/C Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Pro Rata Share and on such date such 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 Lender to hold such Loans in accordance with its 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 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 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 Issuing Lender may shall have against entered into arrangements with the Borrower or such Defaulting Lender. Notwithstanding anything herein , satisfactory to the contrary, the Non-Defaulting Lenders’ option to take an assignment as provided in Section 2.1(b)(ii)(B) may be exercised by a Non-Defaulting Lender in its sole and absolute discretion and nothing contained herein shall obligate any Non-Defaulting Issuing Lender to take defease any risk to it in respect of such assignmentLender hereunder.
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Defaulting Lender. At Notwithstanding any time when 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) fees shall cease to accrue on the Revolving Loan Commitment of such Defaulting Lender pursuant to Section 2.14(c)(i);
(b) the Commitments, Loans and other Revolving Credit Obligations of such Defaulting Lender shall not be included in determining whether the Required Lenders or Required Pro Rata Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 9.03); provided that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender affected thereby;
(c) if any 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 Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Pro Rata Shares of the Revolving Facility but only to the extent the sum of all non-Defaulting Lenders’ Revolving Credit Obligations plus such Defaulting Lender’s Swing Line Obligations and L/C Obligations does not exceed the total of all non-Defaulting Lenders’ Revolving Loan Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one (1) Business Day following notice by the 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 L/C Obligations (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 3.11 for so long as such L/C Obligations are outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s L/C Obligations pursuant to clause (ii) above, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 3.08 with respect to such Defaulting Lender’s L/C Obligations during the period such Defaulting Lender’s L/C Obligations are cash collateralized;
(iv) if the L/C Obligations of the non-Defaulting Lenders are reallocated pursuant to clause (i) above, then the fees payable to the Revolving Lenders pursuant to Section 3.08 shall be adjusted in accordance with such non-Defaulting Lenders’ Pro Rata Shares of the Revolving Facility; and
(v) if all or any portion of such Defaulting Lender’s L/C Obligations are neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other 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 Revolving Loan Commitment that was utilized by such L/C Obligations) and letter of credit fees payable under Section 3.08 with respect to such Defaulting Lender’s L/C Obligations shall be payable to such Issuing Bank until and to the extent that such L/C Obligations are reallocated and/or cash collateralized; and
(d) so long as such Lender is a Defaulting Lender, the BorrowerSwing Line Bank shall not be required to fund any Swing Line Loan and no Issuing Bank shall be required to issue, at amend or increase any Letter of Credit, unless it is satisfied that the Borrower’s election, may elect to terminate such Defaulting Lender’s Commitment hereunder; provided that (A) such termination must be of related exposure and the Defaulting Lender’s entire Commitment, (B) then outstanding L/C Obligations will be 100.0% covered by the NonRevolving Loan Commitments of the non-Defaulting Lenders shall each have and/or cash collateral will be provided by the option to accept an assignment of the Defaulting Lender’s Commitment pursuant to Borrower in accordance with Section 2.15 in lieu of a termination of Commitments pursuant to this Section 2.1(b)(ii9.02(c), (C) to the extent that the Nonand participating interests in any such newly made Swing Line Loan or any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders do not take an assignment as provided in the immediately preceding clause a manner consistent with Section 9.02(c)(i) (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 2.17(a)(iii)), and letter of credit fees (subject to Section 2.17(a)(iii)) but specifically excluding any amounts owing under Section 2.11 as result of such payment of such Advances) and shall deposit with 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 2.17), (D) a Defaulting Lender’s Commitment may be terminated by the 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 not participate therein). If (i) 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 Bankruptcy Event with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Revolving Lender” hereunder, (2) such Defaulting Lender’s Commitment shall be deemed terminated, and (3) such Defaulting parent of any Lender shall be relieved of its obligations hereunder occur following the Escrow Date and for so long as such event shall continue or (ii) the Swing Line Bank or any Issuing Bank has a “Revolving Lender” except as to good faith belief that any Lender has defaulted in fulfilling its obligations under Section 8.4(b) and Section 9.1 one or more other agreements in which such Lender commits to extend credit, the Swing Line Bank shall continue with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Revolving Lender” hereunder, provided that, any such termination will not be deemed required to fund any Swing Line Loan and such Issuing Bank shall not be a waiver required to issue, amend or release increase any Letter of Credit, unless 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 defease any claim risk to it in respect of such Lender hereunder. In the event that the Borrower, the Administrative Agent, the Swingline Borrower, the Swing Line Bank and the Issuing Banks each agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Issuing Swing Line Obligations and L/C Obligations of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Revolving Loan Commitment and on such date such Lender or any Lender may have against shall purchase at par such Defaulting Lender. Notwithstanding anything herein to of the contrary, Revolving Loans of the Non-Defaulting Lenders’ option to take an assignment other Revolving Lenders (other than Swing Line Loans) as provided in Section 2.1(b)(ii)(B) the Administrative Agent shall determine may be exercised by a Non-Defaulting Lender necessary in its sole and absolute discretion and nothing contained herein shall obligate any Non-Defaulting order for such Lender to take any hold such assignmentLoans in accordance with its Pro Rata Share of the Revolving Facility.
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Defaulting Lender. At (a) Notwithstanding any time when a provision of this Agreement to the contrary, if any Lender is then becomes a Defaulting Lender, then the Borrowerfollowing provisions shall apply for so long as such Lender is a Defaulting Lender:
(i) a Defaulting Lender shall not be included in determining whether, at and the Borrower’s election, may elect to terminate Commitment and the rateable share of the Accommodations Outstanding of such Defaulting Lender’s Commitment hereunder; Lender shall not be included in determining whether, all Lenders or the Majority Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 11.1(b)), provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender that (A) materially and adversely affects such termination must be of the Defaulting Lender’s entire CommitmentLender differently than other affected Lenders, (B) increases the Non-Defaulting Lenders shall each have Commitment or extends the option to accept an assignment Maturity Date of the such Defaulting Lender’s Commitment pursuant , or (C) relates to Section 2.15 the matters set forth in lieu of a termination of Commitments pursuant to this Section 2.1(b)(iiSections 11.1(b)(ii), (Ciii), (v) (insofar as it relates to Section 11.1(b)) and (vii), shall require the extent that consent of such Defaulting Lender; and
(ii) for the Non-Defaulting Lenders do not take an assignment as provided in the immediately preceding clause (B)avoidance of doubt, the Borrower shall pay all amounts owed by retain and reserve its other rights and remedies respecting each Defaulting Lender.
(b) If the Borrower to 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 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 Credit Facility); provided that, for certainty, no Lender shall be obligated by this Section 11.9(b) to make or provide Accommodations 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’s capacity as a Revolving Lender (and such Lender shall be deemed to have consented to such disclosure). Each Defaulting Lender agrees to indemnify each other Lender for any amounts paid by such 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 2.17(a)(iii)), and letter of credit fees (subject to Section 2.17(a)(iii)) but specifically excluding any amounts owing under Section 2.11 as result of such payment of such Advances11.9(b) 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 which would otherwise have been reallocated pursuant to Section 2.17), (D) a Defaulting Lender’s Commitment may be terminated paid by the 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 if its Commitment had been included in determining the Administrative Agent rateable share of the Borrower’s election to terminate a Defaulting Lender’s Commitment pursuant to this clause such affected Accommodations.
(iic) and the payment and deposit of amounts required to be made by the Borrower under clause (B) and (C) above, (1) such Defaulting If any Lender shall cease to be a “Revolving Defaulting Lender” hereunder for all purposes except that , then, upon becoming aware of the same, the Administrative Agent shall notify the other Lenders and (in accordance with the written direction of the Administrative Agent) such Lender (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 Accommodations Outstanding equal in total to 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 rateable share thereof without regard to events and occurrences occurring before or concurrently with its ceasing to be a “Revolving Lender” hereunder, (2) such Defaulting Lender’s Commitment shall be deemed terminated, and (3) such Defaulting Lender shall be relieved of its obligations hereunder as a “Revolving Lender” except as to its obligations under Section 8.4(b) and Section 9.1 shall continue with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Revolving Lender” 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 Swingline Lender, the Issuing Lender or any Lender may have against such Defaulting Lender. Notwithstanding anything herein to the contrary, the Non-Defaulting Lenders’ option to take an assignment as provided in Section 2.1(b)(ii)(B) may be exercised by a Non-Defaulting Lender in its sole and absolute discretion and nothing contained herein shall obligate any Non-Defaulting Lender to take any such assignment11.9(a).
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Defaulting Lender. At 1. For so long as a Defaulting Lender has any time when undrawn Interim Commitment, in ascertaining (i) the Majority Interim Lenders; or (ii) whether any given percentage (including, for the avoidance of doubt, unanimity) of the Total Interim Commitments under the Interim Facility or the agreement of any specified group of Interim Lenders has been obtained to approve any request for a consent, waiver, amendment or other vote of Interim Lenders under the Interim Finance Documents, that Defaulting Lender’s Interim Commitments under the Interim Facility will be reduced by the amount of its undrawn Interim Commitments under the Interim Facility and, to the extent that that reduction results in that Defaulting Lender’s Total Interim Commitments being zero, that Defaulting Lender shall be deemed not to be an Interim Lender for the purposes of (i) and (ii) above.
2. For the purposes of paragraph 1 above, the Interim Facility Agent may assume that the following Interim Lenders are Defaulting Lenders:
(a) any Interim Lender which has notified the Interim Facility Agent that it has become a Defaulting Lender;
(b) any Interim Lender in relation to which it is then aware that any of the events or circumstances referred to in paragraphs (a), (b) or (c) of the definition of Defaulting Lender has occurred, unless it has received notice to the contrary from the Interim Lender concerned (together with any supporting evidence reasonably requested by the Interim Facility Agent) or the Interim Facility Agent is otherwise aware that the Interim Lender has ceased to be a Defaulting Lender.
3. Without prejudice to any other provision of this Agreement, the Agents may disclose and, on the written request of the Obligors’ Agent or the Majority Interim Lenders, shall, as soon as reasonably practicable, disclose the identity of a Defaulting Lender to the Obligors’ Agent and to the other Interim Finance Parties.
4. If any Interim Lender becomes a Defaulting Lender, the BorrowerObligors’ Agent may, at any time whilst the Borrower’s election, may elect Interim Lender continues to terminate such Defaulting Lender’s Commitment hereunder; provided that (A) such termination must be of the 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 2.15 in lieu of a termination of Commitments pursuant to this Section 2.1(b)(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 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 2.17(a)(iii)), and letter of credit fees (subject to Section 2.17(a)(iii)) but specifically excluding any amounts owing under Section 2.11 as result of such payment of such Advances) and shall deposit with give the Administrative Interim Facility 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 2.17), (D) a Defaulting Lender’s Commitment may be terminated by the 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 Commitment shall be deemed terminated, and three (3) such Defaulting Lender shall be relieved Business Days’ notice of its obligations hereunder as a “Revolving Lender” except as to its obligations under Section 8.4(b) and Section 9.1 shall continue with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Revolving Lender” hereunder, provided that, any such termination will not be deemed to be a waiver or release cancellation of any claim that the Borrower, the Administrative Agent, the Swingline Lender, the Issuing Lender all or any Lender may have against such Defaulting part of each undrawn Interim Commitment of that Interim Lender. Notwithstanding anything herein to the contrary, the Non-Defaulting Lenders’ option to take an assignment as provided in Section 2.1(b)(ii)(B) may be exercised by a Non-Defaulting Lender in its sole and absolute discretion and nothing contained herein shall obligate any Non-Defaulting Lender to take any such assignment.
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Sources: Interim Facilities Agreement (Quanex Building Products CORP)
Defaulting Lender. Notwithstanding any other provision in this Agreement to the contrary, if at any time a Lender becomes a Defaulting Lender, then the following provisions shall apply so long as any Lender is a Defaulting Lender:
(a) If any Swing Line Advances are outstanding hereunder at any time that one or more Canadian Lenders is a Defaulting Lender:
(i) the participation of the Defaulting Lenders in the Swing Line Advances (the “Swing Line Shortfall”) shall be allocated to the Canadian Lenders who are not Defaulting Lenders in accordance with each such Canadian Lender’s Main Facility Rateable Portion, calculated without regard to the 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 and the Equivalent Amount in United States Dollars of such Lender’s Main Facility Rateable Portion of all outstanding Swing Line Loans to exceed its Commitment; and
(ii) upon two (2) Banking Days written notice by the Administrative agent, Celestica shall immediately prepay the portion of the Swing Line Shortfall which cannot be allocated to a Canadian Lender in accordance with Section 2.23(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) 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 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 and the Equivalent Amount in United States Dollars of its Main Facility Rateable Portion of all outstanding Swing Line Loans to exceed its Commitment;
(ii) upon written notice by the Administrative Agent, Celestica shall immediately cash collateralize the portion any Letter of Credit which cannot be allocated to a Canadian Lender in accordance with Section 2.23(b)(i) by depositing such amount with the Administrative Agent, on behalf of the Issuing Bank, at or before 1:00 p.m. Toronto, Canada time, on the date that is two (2) Banking Days following notice by the Administrative Agent. Any such amount received by the Administrative Agent, on behalf of the Issuing Bank, pursuant to Section 2.23(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 2.23(b)(ii) together with any interest thereon, exceeds the amount required to be cash collateralized in accordance with Section 2.23(b)(ii), if, at any time (i) such 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 provisions of Section 2.24.
(c) At any time when a any Lender is then a Defaulting Lender, the Borrower, at the Borrower’s election, may elect to terminate such Defaulting Lender’s Commitment hereunder; provided that (A) such termination must be of the 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 2.15 in lieu of a termination of Commitments pursuant to this Section 2.1(b)(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 Swing Line 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 2.17(a)(iii)), and letter of credit fees (subject to Section 2.17(a)(iii)) but specifically excluding any amounts owing under Section 2.11 as result of such payment of such Advances) and shall deposit with 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 2.17), (D) a Defaulting Lender’s Commitment may be terminated by the 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 required to the Defaulting Lender fund any Swing Line Advance, and the Administrative Agent Issuing Bank shall not be required to issue, amend or increase any Letter of the Borrower’s election to terminate a Defaulting Lender’s Commitment pursuant to this clause (ii) and the Credit, unless it is satisfied that any payment and deposit of amounts required to be made in accordance with Section 2.23(a) or any cash collateral required to be deposited in accordance with Section 2.23(b) has been and/or will be provided by the Borrower under clause (B) or Celestica, as applicable, in accordance with this Section 2.23 and (C) above, (1) any 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 Swing Line Advance or concurrently with its ceasing to be a “Revolving Lender” hereunder, (2) such Defaulting Lender’s Commitment Letter of Credit shall be deemed terminatedallocated among the Canadian Lenders who are not Defaulting Lenders in accordance with Section 2.23(a) or (b), and as applicable.
(3d) such Defaulting Lender No allocation under this Section 2.23 shall be relieved of its obligations hereunder as a “Revolving Lender” except as to its obligations under Section 8.4(b) and Section 9.1 shall continue with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Revolving Lender” hereunder, provided that, any such termination will not be deemed to be constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that the Borrower, the Administrative Agent, the Swingline Lender, the Issuing Lender or any Lender may have against such having become a Defaulting Lender. Notwithstanding anything herein to the contrary, the Non-Defaulting Lenders’ option to take an assignment as provided in Section 2.1(b)(ii)(B) may be exercised by a Non-Defaulting Lender in its sole and absolute discretion and nothing contained herein shall obligate any Non-Defaulting Lender to take any such assignment.
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Defaulting Lender. At any time when a Lender is then a Defaulting Lender, the Borrower, at the Borrower’s its election, may elect to terminate such Defaulting Lender’s Commitment hereunder; provided that (A) such termination must be of the Defaulting Lender’s entire Commitment, (B) the Non-Defaulting Lenders shall each have the option to accept an assignment all of the Defaulting Lender’s Commitment pursuant to Section 2.15 in lieu of a termination of Commitments pursuant to this Section 2.1(b)(ii)Commitments, (CB) 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 it 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 Unused Line Fees (subject to Section 2.17(a)(iii2.18(a)(iii)), and letter of credit fees (subject to Section 2.17(a)(iii)2.18(a)(iii) but specifically excluding any amounts owing under Section 2.11 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 ratable share of the Dollar Equivalent of the Letter of Credit Exposure (including any such Letter of Credit Exposure portion thereof that has been reallocated pursuant to Section 2.172.18), (DC) a Defaulting Lender’s Commitment Commitments may be terminated by the 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 (ED) such termination shall not be permitted if a no 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 Commitments pursuant to this clause (iiiv) 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 2.12Section 2.11, 2.142.13, 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 “Revolving Lender” hereunder, (2) such Defaulting Lender’s Commitment Commitments shall be deemed terminated, and (3) such Defaulting Lender shall be relieved of its obligations hereunder as a “Revolving Lender” except as to its obligations under Section 8.4(b) 8.4 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 “Revolving Lender” hereunder, provided that, any such termination will not be deemed to be a waiver or release of any claim that the by Borrower, the Administrative Agent, the Swingline LenderLenders, the Issuing Lender Lenders or any Lender may have against such Defaulting Lender. Notwithstanding anything herein to the contrary, the Non-Defaulting Lenders’ option to take an assignment as provided in Section 2.1(b)(ii)(B) may be exercised by a Non-Defaulting Lender in its sole and absolute discretion and nothing contained herein shall obligate any Non-Defaulting Lender to take any such assignment.
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Defaulting Lender. At 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) fees shall cease to accrue on the unfunded portion of any Commitment of such Defaulting Lender pursuant to this Agreement;
(b) the Commitments and Obligations of such Defaulting Lender shall not be included in determining whether the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 11.1); provided, that in the case of an amendment, waiver or other modification requiring the consent of all Lenders or of each Lender affected thereby, the Defaulting Lender’s consent shall be only be required with respect to (i) a proposed increase or extension of such Defaulting Lender’s Commitments and (ii) a proposed reduction or excuse, or a proposed postponement of the scheduled date of payment, of the principal amount of, or interest or fees payable on, any Loans or LOC Obligations as to any such Defaulting Lender;
(c) if any Swingline Loans or LOC Obligations are outstanding at the time when a Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Loans and LOC Obligations allocable to such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Revolving Commitment Percentages but only to the extent the sum of all non-Defaulting Lenders’ Obligations plus such Defaulting Lender’s allocable share of Swingline Loans and LOC Obligations does not exceed the total of all non-Defaulting Lenders’ Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent (x) first, prepay Swingline Loans allocable to such Defaulting Lender and (y) second, cash collateralize for the benefit of the Issuing Lender only the Borrower’s obligations corresponding to such Defaulting Lender’s allocable share of LOC Obligations (after giving effect to any partial reallocation pursuant to clause (i) above) for so long as such LOC Obligations are outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s allocable share of LOC Obligations pursuant to this Section 2.19(c), the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.4 with respect to such Defaulting Lender’s allocable share of LOC Obligations during the period such Defaulting Lender’s allocable share of LOC Obligations is cash collateralized;
(iv) if the allocable share of LOC Obligations of the non-Defaulting Lenders is reallocated pursuant to this Section 2.19(c), then the fees payable to the Lenders pursuant to Section 2.4 shall be adjusted in accordance with such non-Defaulting Lenders’ Revolving Commitment Percentages; and
(v) if all or any portion of such Defaulting Lender’s allocable share of LOC Obligations is neither cash collateralized nor reallocated pursuant to this Section 2.19(c), then, without prejudice to any rights or remedies of any Issuing Lender or any Lender hereunder, all fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitments that were utilized by such LOC Obligations and any applicable letter of credit fees) with respect to such Defaulting Lender’s allocable share of LOC Obligations shall be payable to the Issuing Lender until and to the extent that such allocable share of LOC Obligations is cash collateralized and/or reallocated; and
(d) so long as any Lender is a Defaulting Lender, the BorrowerSwingline Lender shall not be required to fund any Swingline Loan and the Issuing Lender shall not be required to issue, at amend or increase any Letter of Credit, unless it is satisfied that the Borrower’s election, may elect to terminate such related exposure and each Defaulting Lender’s Commitment hereunder; provided that (A) such termination must then outstanding allocable share of LOC Obligations will be 100% covered by the Commitments of the Defaulting Lender’s entire Commitment, (B) the Nonnon-Defaulting Lenders shall each have and/or cash collateral will be provided by the option to accept an assignment of the Defaulting Lender’s Commitment pursuant to Borrower in accordance with Section 2.15 in lieu of a termination of Commitments pursuant to this Section 2.1(b)(ii2.19(c), (C) to the extent that the Nonand participating interests in any such newly issued or increased Letter of Credit or newly made Swingline Loan shall be allocated among non-Defaulting Lenders do in a manner consistent with Section 2.19(c)(i) (and Defaulting Lenders shall not take an assignment participate therein).
(e) 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 provided such event shall continue or (ii) the Swingline Lender or the Issuing Lender has a good faith belief that any Lender has defaulted in the immediately preceding clause (B)fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Borrower shall pay all amounts owed by the Borrower to such Defaulting Swingline 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 2.17(a)(iii)), and letter of credit fees (subject to Section 2.17(a)(iii)) but specifically excluding any amounts owing under Section 2.11 as result of such payment of such Advances) and shall deposit with 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 2.17), (D) a Defaulting Lender’s Commitment may be terminated by the 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 required to fund any Swingline Loan and is continuing at the time Issuing Lender shall not be required to issue, amend or increase any Letter of Credit, unless 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 Lender, as the case may be, to defease any risk to it in respect of such election and terminationLender hereunder. Upon written notice to In 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 event 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 Commitment shall be deemed terminated, and (3) such Defaulting Lender shall be relieved of its obligations hereunder as a “Revolving Lender” except as to its obligations under Section 8.4(b) and Section 9.1 shall continue with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Revolving Lender” 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 Swingline LenderBorrower, the Issuing Lender or any and the Swingline Lender may have against each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender. Notwithstanding anything herein , then the allocable shares of Swingline Loans and the allocable shares of LOC Obligations of the Lenders shall be readjusted to reflect the contrary, inclusion of such Lender’s Commitments and on such date such Lender shall purchase at par such of the Non-Defaulting Lenders’ option to take an assignment Loans of the other Lenders (other than Swingline Loans) as provided in Section 2.1(b)(ii)(B) the Administrative Agent shall determine may be exercised by a Non-Defaulting Lender necessary in its sole and absolute discretion and nothing contained herein shall obligate any Non-Defaulting order for such Lender to take any hold such assignmentLoans in accordance with its Revolving Commitment Percentage.
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Defaulting Lender. At Notwithstanding any time when a provision of this Agreement to the contrary, if any Lender is then becomes a Defaulting Lender, then the Borrowerfollowing provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue from and after the time such Lender becomes a Defaulting Lender on the unused portion of the Commitment of such Defaulting Lender pursuant to Section 2.06(a); and
(b) the Commitment and Term Loans of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders have taken or may take any action hereunder (including, at without limitation, any consent to any amendment, waiver or modification pursuant to Section 8.01), provided that any amendment, waiver or modification requiring the Borrower’s electionconsent of all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected Lenders, may elect or that would (i) change the percentage of Commitments or of the aggregate unpaid principal amount of the Term Loans or the number of Lenders, that shall be required for the Lenders or any of them to terminate take any action hereunder, (ii) amend this Section 2.21 or Section 8.01, (iii) increase or extend the Commitment of such Defaulting Lender or subject such Defaulting Lender to any additional obligations (it being understood that any amendment, waiver or consent in respect of conditions, covenants, Defaults or Events of Default shall not constitute an increase or extension of the Commitment of any Lender or an additional obligation of any Lender), (iv) reduce the principal of the Term Loans made by such Defaulting Lender or (v) postpone any date fixed for any payment of principal of, or interest on, the Term Loans made by such Defaulting Lender’s Commitment hereunder; provided that (A) such termination must be of the 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 2.15 in lieu of a termination of Commitments pursuant to this Section 2.1(b)(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 fees or other 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 payable hereunder to such Defaulting Lender, accrued Commitment Fees (subject to Section 2.17(a)(iii)), and letter shall in each case require the consent of credit fees (subject to Section 2.17(a)(iii)) but specifically excluding any amounts owing under Section 2.11 as result of such payment of such Advances) and shall deposit with 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 2.17), (D) a Defaulting Lender’s Commitment may be terminated by the 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 Commitment which consent shall be deemed terminated, and (3) to have been given if such Defaulting Lender shall be relieved of its obligations hereunder as fails to respond to a “Revolving Lender” except as to its obligations under Section 8.4(b) and Section 9.1 shall continue with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Revolving Lender” hereunder, provided that, any request for such termination will not be deemed to be a waiver or release of any claim that the Borrower, the Administrative Agent, the Swingline Lender, the Issuing Lender or any Lender may have against such Defaulting Lender. Notwithstanding anything herein to the contrary, the Non-Defaulting Lenders’ option to take an assignment as provided in Section 2.1(b)(ii)(B) may be exercised by a Non-Defaulting Lender in its sole and absolute discretion and nothing contained herein shall obligate any Non-Defaulting Lender to take any such assignmentconsent within 20 days).
Appears in 1 contract
Sources: 364 Day Term Loan Credit Agreement (Verizon Communications Inc)
Defaulting Lender. At 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) fees shall cease to accrue on the unfunded portion of any Commitment of such Defaulting Lender pursuant to this Agreement;
(b) the Commitments and Revolving Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided, that in the case of an amendment, waiver or other modification requiring the consent of all Lenders or of each Lender affected thereby, the Defaulting Lender’s consent shall be only be required with respect to (i) a proposed increase or extension of such Defaulting Lender’s Commitments and (ii) a proposed reduction or excuse, or a proposed postponement of the 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 when a Lender becomes a Defaulting Lender then:
(i) all or any part of 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 that such reallocation does not, as to any non-Defaulting Lender, cause such non-Defaulting Lender’s Revolving Exposure to exceed its Commitment and (y) if the conditions set forth in Section 4.03 are satisfied at that time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one (1) Business Day following notice by the Administrative 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(j) for so long as such LC Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to this Section 2.20(c), the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 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 2.20(c), then the fees payable to the Lenders pursuant to Section 2.11 shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither cash collateralized nor reallocated pursuant to this Section 2.20(c), then, without prejudice to any rights or remedies of the Issuing Bank or any Lender hereunder, all fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitments that were utilized by such LC Exposure and any applicable letter of credit fees) with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing 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 BorrowerIssuing Bank shall not be required to issue, at amend or increase any Letter of Credit, unless it is satisfied that the Borrower’s election, may elect to terminate such related exposure and each Defaulting Lender’s Commitment hereunder; provided that (A) such termination must then outstanding LC Exposure will be 100% covered by the Commitments of the Defaulting Lender’s entire Commitment, (B) the Nonnon-Defaulting Lenders shall each have and/or cash collateral will be provided by the option to accept an assignment of the Defaulting Lender’s Commitment pursuant to Borrower in accordance with Section 2.15 in lieu of a termination of Commitments pursuant to this Section 2.1(b)(ii2.20(c), (C) and LC Exposure related to the extent that the Nonany newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders do in a manner consistent with Section 2.20(c)(i) (and Defaulting Lenders shall not take an assignment participate therein). If (i) a Bankruptcy Event with respect to any Lender Parent shall occur following the date hereof and for so long as provided such event shall continue or (ii) the Issuing Bank has a good faith belief that any Lender has defaulted in the immediately preceding clause (B)fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, 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 2.17(a)(iii)), and letter of credit fees (subject to Section 2.17(a)(iii)) but specifically excluding any amounts owing under Section 2.11 as result of such payment of such Advances) and shall deposit with 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 2.17), (D) a Defaulting Lender’s Commitment may be terminated by the 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 Issuing Bank shall not be permitted if a Default has occurred and is continuing at required to issue, amend or increase any Letter of Credit, unless the time Issuing Bank shall have entered into arrangements with the Borrower or such Lender, satisfactory to the Issuing Bank to defease any risk to it in respect of such election and terminationLender hereunder. Upon written notice to In 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 event 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 Commitment shall be deemed terminated, and (3) such Defaulting Lender shall be relieved of its obligations hereunder as a “Revolving Lender” except as to its obligations under Section 8.4(b) and Section 9.1 shall continue with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Revolving Lender” 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 Swingline Borrower and the Issuing Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Issuing LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender or any Lender may have against shall purchase at par such Defaulting Lender. Notwithstanding anything herein to of the contrary, Loans of the Non-Defaulting Lenders’ option to take an assignment other Lenders as provided in Section 2.1(b)(ii)(B) the Administrative Agent shall determine may be exercised by a Non-Defaulting Lender necessary in its sole and absolute discretion and nothing contained herein shall obligate any Non-Defaulting order for such Lender to take any hold such assignmentLoans in accordance with its Applicable Percentage.
Appears in 1 contract
Sources: Credit Agreement (Solaris Oilfield Infrastructure, Inc.)
Defaulting Lender. At any time when a Lender is then a Defaulting Lender, the Borrower, at the Borrower’s election, may elect to terminate such Defaulting Lender’s Commitment hereunder; provided that (A) such termination must be of the 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 2.15 in lieu of a termination of Commitments pursuant to this Section 2.1(b)(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 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 the proviso Section 2.17(a)(iii2.7(a)), and letter of credit fees (subject to Section 2.17(a)(iii)) but specifically excluding any amounts owing under Section 2.11 2.10 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 Dollar Equivalent of the Letter of Credit Exposure (including any such Letter of Credit Exposure that has been reallocated pursuant to Section 2.172.16), and (DC) a Defaulting Lender’s Commitment may be terminated by the 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 2.122.11, 2.142.13, 8.4 8.5 and 9.1 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 Commitment shall be deemed terminated, and (3) such Defaulting Lender shall be relieved of its obligations hereunder as a “Revolving Lender” except as to its obligations under Section 8.4(b) 8.5 and Section 9.1 9.2(d) which obligations shall continue with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Revolving Lender” hereunder, provided that, any such termination will not be deemed to be a waiver or release of any claim that by the Borrower, the Administrative Agent, the Swingline LenderSwing Line Lenders, the Issuing Lender Lenders or any Lender may have against such Defaulting Lender. Notwithstanding anything herein to the contrary, the Non-Defaulting Lenders’ option to take an assignment as provided in Section 2.1(b)(ii)(B) may be exercised by a Non-Defaulting Lender in its sole and absolute discretion and nothing contained herein shall obligate any Non-Defaulting Lender to take any such assignment.
Appears in 1 contract
Defaulting Lender. At If any time when a Lender is then becomes a Defaulting Lender, then the Borrower, at the Borrower’s election, may elect to terminate following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) such Defaulting Lender’s Revolving Commitment hereunder; provided that (A) such termination must and outstanding Revolving Loans shall be excluded for purposes of calculating the fee payable to 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 entire Commitment, Revolving Commitment or Revolving Loans (B) the Nonin each case not including any fee in connection with any portion of such Defaulting Lenders Revolving Commitment that has been reallocated to non-Defaulting Lenders shall each have the option to accept an assignment of the Defaulting Lender’s Commitment pursuant to Section 2.15 10.21(d) hereof).
(b) the Revolving Commitments and Loans of such Defaulting Lender shall not be included in lieu of a termination of Commitments determining whether all Lenders, the Required Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to this Section 2.1(b)(ii10.5), .
(Cc) to the extent that the Non-Defaulting Lenders do not take an assignment as provided in the immediately preceding clause (B)event a Defaulting Lender has defaulted on its obligation to fund any Revolving Loan, or purchase any participation pursuant to Section 1.5 hereof, until such time as the Borrower shall pay all amounts owed by the Borrower Default Excess with respect 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 has been reduced to zero, any prepayments or repayments on account of and interest on the Revolving Advances owed Loans or participations pursuant to Section 1.5, in each case to the extent they would be otherwise be payable to such Defaulting Lender, accrued Commitment Fees (subject shall be applied first, to Section 2.17(a)(iii)), and letter the payment of credit fees (subject to Section 2.17(a)(iii)) but specifically excluding any amounts owing under Section 2.11 as result by such Defaulting Lender to Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such payment Defaulting Lender to the Issuing Bank or Letter of such Advances) and shall deposit with the Administrative Agent into the Cash Collateral Account Credit guarantor/indemnitor hereunder; third, to provide cash collateral in the amount equal of 103% of the Issuing Bank’s (or the Letter of Credit guarantor/indemnitor’s, as the case may be) Fronting Exposure with respect to such Defaulting Lender; fourth, as the Borrowers 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 Agent; fifth, if so determined by Agent and the Borrowers, to be held in a deposit account 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) 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; sixth, to the payment of any amounts owing to the Lenders, the Issuing Bank or the Letter of Credit guarantor/indemnitor as a result of any judgment of a court of competent jurisdiction obtained by any Lender, the Issuing Bank or 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, so 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 eighth, to such 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 Letter of Credit Balance in respect of which such Defaulting Lender has not fully funded its appropriate share and (y) such Loans or Letter of Credit Balance were made at a time when the conditions set forth in Section 1.6 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and Letter of Credit Balance owed to, all non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or 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 ratable share 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 Exposure (including Balance pursuant to this Section 10.21(d), the Borrowers shall not be required to pay any such Letter of Credit Exposure that has been reallocated pursuant Fees to Section 2.17), (D) a Defaulting Lender’s Commitment may be terminated by the 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) the portion of such Defaulting Lender’s Commitment shall be deemed terminated, Pro Rata Share of the Letter of Credit Balance which have been cash collateralized (and (3) such the Defaulting Lender shall not be relieved entitled to receive any such fees);
(iv) if the Defaulting Lender’s Pro Rata Share of its obligations 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 as a “Revolving Lender” except as to its obligations under Section 8.4(b) and Section 9.1 shall continue with respect to events 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 occurrences occurring before or concurrently with its ceasing to be a “Revolving Lender” hereunder, provided that, participating interests in any such termination will 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 be deemed participate therein).
(f) No reallocation permitted pursuant to be 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 Borrower, the Administrative event that Agent, the Swingline Issuing Bank and the Letter of Credit guarantor/indemnitor each agrees in writing that a Defaulting Lender has adequately remedied all matters which caused such Lender to become a Defaulting Lender, then the Pro Rata Shares of the Letter of Credit Balance of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Revolving Commitment and on such date such Lender shall purchase at par such of the Revolving Loans of the other Lenders or participations in the Revolving Loans as Agent shall determine may be necessary in order for such Lender to hold such Revolving Loans or participations in accordance with its 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 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 Lender Bank or any Lender the Letter of Credit guarantor/indemnitor, as applicable, may have against such Defaulting Lender. Notwithstanding anything herein to the contrary, the Non-Defaulting Lenders’ option to take an assignment as provided in Section 2.1(b)(ii)(B) may be exercised by a Non-Defaulting Lender in its sole and absolute discretion and nothing contained herein shall obligate any Non-Defaulting Lender to take any such assignment.
Appears in 1 contract
Defaulting Lender. At Notwithstanding any time when a provision of this Agreement to the contrary, if any Lender is then becomes a Defaulting Lender, then the Borrowerfollowing provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) Facility Fees, at if any, shall cease to accrue on the Borrower’s electionunfunded Commitment of such Defaulting Lender pursuant to Section 2.13;
(b) such Defaulting Lender and the Commitment and Extensions of Credit of such Defaulting Lender shall not be included in determining whether the Lenders, the Required Lenders, Majority Facility Lenders under such Facility or any directly affected Lender under such Facility have taken or may elect take any action hereunder (including any consent to terminate any amendment, consent, waiver or other modification pursuant to Section 10.1); provided, that this clause (b) shall not apply in the case of an amendment, waiver or other modification that has the effect of (i) increasing the amount or extending the expiration date of all or any portion of such Defaulting Lender’s Commitment hereunder; provided that (A) such termination must be or extending the final scheduled maturity date of the 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 2.15 in lieu of a termination of Commitments pursuant to this Section 2.1(b)(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 any Loan held 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 ii) forgiving or reducing any principal amount of and interest on the Revolving Advances owed any Loan or any Reimbursement Obligation owing to such Defaulting Lender, accrued Commitment Fees or (subject to Section 2.17(a)(iii)), and letter iii) reducing the stated rate of credit any interest or fees (subject to Section 2.17(a)(iii)) but specifically excluding any amounts owing under Section 2.11 as result of such payment of such Advances) and shall deposit with the Administrative Agent into the Cash Collateral Account cash collateral in the amount equal payable to such Defaulting Lender’s ratable share Lender hereunder, or extending the scheduled date of any payment required hereunder (for the Letter purpose of Credit Exposure clarity, the foregoing clauses (including any such Letter of Credit Exposure that has been reallocated pursuant to Section 2.17i), (D) a Defaulting Lender’s Commitment may be terminated by the 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 Commitment shall be deemed terminated, and (3) such Defaulting Lender shall be relieved of its obligations hereunder as a “Revolving Lender” except as to its obligations under Section 8.4(b) and Section 9.1 shall continue with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Revolving Lender” 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 Swingline Lender, the Issuing Lender or any Lender may have against such Defaulting Lender. Notwithstanding anything herein to the contrary, the Non509265-Defaulting Lenders’ option to take an assignment as provided in Section 2.1(b)(ii)(B) may be exercised by a Non1725-Defaulting Lender in its sole and absolute discretion and nothing contained herein shall obligate any Non14038-Defaulting Lender to take any such assignment.Active.16338633
Appears in 1 contract
Sources: 3 Year Revolving Credit Agreement (General Motors Co)
Defaulting Lender. At Notwithstanding any time when 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 2.20(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 2.20(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 2.20(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 BorrowerIssuing Lenders shall not be required to issue, at extend, amend or increase any Letter of Credit, unless the Borrower’s election, may elect to terminate such Defaulting Lender’s Commitment hereunder; provided applicable Issuing Lender is satisfied that (A) such termination must the related exposure will be 100% covered by the Revolving Credit Commitments of the Defaulting Lender’s entire Commitment, (B) the Nonnon-Defaulting Lenders shall each have and/or cash collateral will be provided by the option to accept an assignment of the Defaulting Lender’s Commitment pursuant to Section 2.15 Borrowers in lieu of a termination of Commitments pursuant to accordance with this Section 2.1(b)(ii2.20(d), (C) to the extent that the Nonand participating interests in any such newly issued, extended or increased Letter of Credit shall be allocated among non-Defaulting Lenders do in a manner consistent with Section 2.20(c)(i) (and Defaulting Lenders shall not take an assignment as provided in the immediately preceding clause participate therein); and
(B), the Borrower shall pay all amounts owed by the Borrower e) any amount payable to such Defaulting Lender in hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender’s capacity as a Revolving Lender under this Agreement and under the other Credit Documents (including principal pursuant to Section 2.17(d) but excluding Section 2.18(b)) shall, in lieu of and interest on the Revolving Advances owed being distributed to such Defaulting Lender, accrued Commitment Fees (be retained by the Administrative Agent in a segregated account and, subject to Section 2.17(a)(iii))any applicable requirements of law, and letter be applied at such time or times as may be determined by the Administrative Agent (i) first, to the payment of credit fees (subject to Section 2.17(a)(iii)) but specifically excluding any amounts owing under Section 2.11 as result of by such payment of such Advances) and shall deposit with Defaulting Lender to the Administrative Agent into hereunder, (ii) second, pro rata, to the Cash Collateral Account 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 amount equal 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, 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 ratable share breach of the Letter of Credit Exposure (including any such Letter of Credit Exposure that has been reallocated pursuant to Section 2.17)its obligations under this Agreement, (Dvii) seventh, to the payment of any amounts owing to the Borrowers as a Defaulting Lender’s Commitment may be terminated result of any judgment of a court of competent jurisdiction obtained by the 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) Borrowers against 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) result of such Defaulting Lender’s Commitment shall be deemed terminatedbreach of its obligations under this Agreement, and (3viii) 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 relieved 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 its any Loans, or reimbursement obligations hereunder as a “Revolving Lender” except as to its obligations under Section 8.4(b) and Section 9.1 shall continue with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Revolving Lender” hereunder, provided thatowed to, any such termination will not be deemed to be a waiver or release of any claim Defaulting Lender. In the event that the Borrower, the Administrative Agent, the Swingline 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 Issuing Lender or any Lender may have against LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Defaulting Lender. Notwithstanding anything herein to ’s Revolving Credit Commitment and on such date such Defaulting Lender shall purchase at par such of the contrary, Loans of the Non-Defaulting Lenders’ option to take an assignment other Lenders as provided in Section 2.1(b)(ii)(B) the Administrative Agent shall determine may be exercised by a Non-Defaulting Lender necessary in its sole and absolute discretion and nothing contained herein shall obligate any Non-order for such Defaulting Lender to take any hold such assignmentLoans in accordance with its Applicable Percentage.
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Defaulting Lender. Notwithstanding any other provision in this Agreement to the contrary, if at any time a Lender becomes a Defaulting Lender, then the following provisions shall apply so long as any Lender is a Defaulting Lender:
(a) If any Swing Line Advances are outstanding hereunder at any time that one or more Canadian Lenders is a Defaulting Lender:
(i) the participation of the Defaulting Lenders in the Swing Line Advances (the “Swing Line Shortfall”) shall be allocated to the Canadian Lenders who are not Defaulting Lenders in accordance with 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 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 such Lender’s Main Facility Rateable Portion of all outstanding Swing Line Advances to exceed its Revolving Facility Commitment; and
(ii) upon two (2) Banking Days written notice by the Administrative agent, Celestica shall immediately prepay the portion of the Swing Line Shortfall which cannot be allocated to a Canadian Lender in 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) 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 cannot 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 before 1:00 p.m. Toronto, Canada time, on the date that is two (2) Banking Days following notice by the Administrative Agent. Any such amount received by the Administrative Agent, on behalf of the Issuing Bank, pursuant to 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) such 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 provisions of Section 2.29.
(c) At any time when a any Lender is then a Defaulting Lender, the Borrower, at the Borrower’s election, may elect to terminate such Defaulting Lender’s Commitment hereunder; provided that (A) such termination must be of the 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 2.15 in lieu of a termination of Commitments pursuant to this Section 2.1(b)(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 Swing Line 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 2.17(a)(iii)), and letter of credit fees (subject to Section 2.17(a)(iii)) but specifically excluding any amounts owing under Section 2.11 as result of such payment of such Advances) and shall deposit with 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 2.17), (D) a Defaulting Lender’s Commitment may be terminated by the 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 required to the Defaulting Lender fund any Swing Line Advance, and the Administrative Agent Issuing Bank shall not be required to issue, amend or increase any Letter of the Borrower’s election to terminate a Defaulting Lender’s Commitment pursuant to this clause (ii) and the Credit, unless it is satisfied that any payment and deposit of amounts required to be 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 Borrower under clause (B) or Celestica, as applicable, in accordance with this Section 2.28 and (C) above, (1) any 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 Swing Line Advance or concurrently with its ceasing to be a “Revolving Lender” hereunder, (2) such Defaulting Lender’s Commitment Letter of Credit shall be deemed terminatedallocated among the Canadian Lenders who are not Defaulting Lenders in accordance with Section 2.28(a) or (b), and as applicable.
(3d) such Defaulting Lender No allocation under this Section 2.28 shall be relieved of its obligations hereunder as a “Revolving Lender” except as to its obligations under Section 8.4(b) and Section 9.1 shall continue with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Revolving Lender” hereunder, provided that, any such termination will not be deemed to be constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that the Borrower, the Administrative Agent, the Swingline Lender, the Issuing Lender or any Lender may have against such having become a Defaulting Lender. Notwithstanding anything herein to the contrary, the Non-Defaulting Lenders’ option to take an assignment as provided in Section 2.1(b)(ii)(B) may be exercised by a Non-Defaulting Lender in its sole and absolute discretion and nothing contained herein shall obligate any Non-Defaulting Lender to take any such assignment.
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Sources: Credit Agreement (Celestica Inc)
Defaulting Lender. At Notwithstanding any time when provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then so long as such Revolving Lender is then a Defaulting Lender: (a) if any Swing Line Exposure or LC Exposure exists at the time a Revolving Lender becomes a Defaulting Lender, the BorrowerBorrower shall within one Business Day following notice by the Administrative Agent (i) first, at prepay such Swing Line Exposure (or, if the Borrower’s electionSwing Line Lender s shall agree, may elect to terminate cash collateralize 100% of such Defaulting Lender’s Commitment hereunder; provided that Swing Line Exposure (Aother than the portion of such Swing Line Exposure referred to in clause (b) such termination must be of the Defaulting Lender’s entire Commitmentdefinition of such term) therein and otherwise in accordance with the procedures set forth in Section 2.04(k) for so long as such Swing Line Exposure is outstanding) and (ii) second, (B) the Non-Defaulting 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 pursuant to this Section 2.1(b)(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 in cash collateralize 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 2.17(a)(iii)), and letter of credit fees (subject to Section 2.17(a)(iii)) but specifically excluding any amounts owing under Section 2.11 as result of such payment of such Advances) and shall deposit with the Administrative Agent into the Cash Collateral Account cash collateral LC Exposure in the 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 (b) ▇▇▇▇▇ 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’s ratable share 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 Letter Revolving Commitment of Credit Exposure (including any such Letter of Credit Exposure that has been reallocated Defaulting Lender pursuant to Section 2.172.10(a), (D) a Defaulting Lender’s Commitment may be terminated by the 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 (Ed) such termination shall not be permitted if a Default has occurred the Revolving Exposure and is continuing at the time unused Revolving Commitment 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 Commitment shall be deemed terminated, and (3) such Defaulting Lender shall be relieved of its obligations hereunder as a “Revolving Lender” except as to its obligations under Section 8.4(b) and Section 9.1 shall continue with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Revolving Lender” hereunder, provided that, any such termination will not be deemed included in determining whether the Required Lenders have taken or may take any action hereunder (including any consent to be a any amendment, waiver or release of any claim other modification pursuant to Section 10.02); provided, that the Borrower, the Administrative Agent, the Swingline Lender, the Issuing Lender or any Lender may have against such Defaulting Lender. Notwithstanding anything herein this clause (d) shall not apply to the contrary, the Non-Defaulting Lenders’ option to take an assignment as provided in Section 2.1(b)(ii)(B) may be exercised by vote of a Non-Defaulting Lender in its sole and absolute discretion and nothing contained herein shall obligate any Non-Defaulting the case of an amendment, waiver or other modification requiring the consent of such Lender to take any such assignmentor each Lender affected thereby.
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Defaulting Lender. At Notwithstanding any time when a provision of this Agreement to the contrary, if any Lender is then becomes a Defaulting Lender, then the Borrowerfollowing provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) all fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 5.1;
(b) the shares of the Revolving Credit Exposure or deemed Revolving Credit Exposure of, any Defaulting Lender shall be excluded for purposes of making a determination of Required Lenders, provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender less favorably than other affected Lenders shall require the consent of such Defaulting Lender;
(c) if any Swingline Exposure or Letter of Credit Exposure exists at the Borrower’s election, may elect time a Lender becomes a Defaulting Lender then:
(i) all or any part of such Swingline Exposure and Letter of Credit Exposure shall be reallocated among the non-Defaulting Lenders in accordance with their respective Pro Rata Shares but only to terminate the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Commitment hereunder; provided that Swingline Exposure and Letter of Credit Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments and (A) such termination must be of the Defaulting Lender’s entire Commitment, (By) the Non-Defaulting Lenders shall each have conditions set forth in Section 9.2 are satisfied at such time; and
(ii) if the option to accept an assignment of the Defaulting Lender’s Commitment pursuant to Section 2.15 reallocation described in lieu of a termination of Commitments pursuant to this Section 2.1(b)(ii), (C) to the extent that the Non-Defaulting Lenders do not take an assignment as provided in the immediately preceding clause (B)i) above cannot, the or can only partially, be effected, Borrower shall pay all amounts owed within one Business Day following notice by the Borrower to Administrative Agent (x) first, prepay such Defaulting Lender in Swingline Exposure and (y) second, Cash Collateralize 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 2.17(a)(iii)), and letter of credit fees (subject to Section 2.17(a)(iii)) but specifically excluding any amounts owing under Section 2.11 as result of such payment of such Advances) and shall deposit with the Administrative Agent into the Cash Collateral Account cash collateral in the amount equal to such Defaulting Lender’s ratable share Outstanding Amount of the Letter of Credit Exposure (including after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 3.3 for so long as such Letter of Credit Exposure that has been reallocated pursuant to Section 2.17), is outstanding;
(Diii) a if Borrower Cash Collateralizes any portion of such Defaulting Lender’s Commitment may be terminated by the 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 Letter 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 Credit Exposure pursuant to this clause (ii) and the payment and deposit of amounts above, Borrower shall not be required to be made by the Borrower under clause (B) and (C) above, (1) pay any fees to such Defaulting Lender shall cease pursuant 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 5.2 or 5.3 with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Revolving Lender” hereunder, (2) such Defaulting Lender’s Commitment Letter of Credit Exposure during the period such Defaulting Lender’s Letter of Credit Exposure is Cash Collateralized;
(iv) if the Letter of Credit Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 5.2 and 5.3 shall be deemed terminatedadjusted in accordance with such non-Defaulting Lenders’ Pro Rata Shares; and
(v) if any Defaulting Lender’s Letter of Credit Exposure is neither reallocated pursuant to clause (i) above nor Cash Collateralized pursuant to clause (ii) above, then, without prejudice to any rights or remedies of the Letter of Credit Issuer or any Lender hereunder, all Letter of Credit fees payable under Sections 5.2 and (3) such Defaulting Lender shall be relieved of its obligations hereunder as a “Revolving Lender” except as to its obligations under Section 8.4(b) and Section 9.1 shall continue 5.3 with respect to events such Defaulting Lender’s Letter of Credit Exposure shall be payable to the Letter of Credit Issuer until such Letter of Credit 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 Advances and occurrences occurring before the Letter of Credit Issuer shall not be required to issue, amend or concurrently increase any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrower in accordance with its ceasing to be a “Revolving Lender” hereunderclause (c)(ii) above, provided that, and participating interests in any such termination will newly issued or increased Letter of Credit or newly made Swingline Loan shall be allocated among non-Defaulting Lenders in a manner consistent with clause (c)(i) above (and Defaulting Lenders shall not be deemed to be a waiver or release of any claim participate therein). In the event that the Borrower, the Administrative Agent, Borrower, the Letter of Credit Issuer and the Swingline Lender each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Issuing Swingline Exposure and Letter of Credit Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender or any Lender may have against shall purchase at par such Defaulting Lender. Notwithstanding anything herein to of the contrary, Loans of the Non-Defaulting Lenders’ option to take an assignment other Lenders (other than Swingline Loans) as provided in Section 2.1(b)(ii)(B) the Administrative shall determine may be exercised by a Non-Defaulting Lender necessary in its sole and absolute discretion and nothing contained herein shall obligate any Non-Defaulting order for such Lender to take any hold such assignmentLoans in accordance with its Pro Rata Share.
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Defaulting Lender. At 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) fees shall cease to accrue on the unfunded portion of any Revolving Commitment of such Defaulting Lender pursuant to this Agreement;
(b) the Revolving Commitments and the Revolving Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 9.02), 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 when a Lender becomes a Defaulting Lender then:
(i) all or any part of such Swingline Exposure and LC Exposure shall be reallocated among the Lenders which are not Defaulting Lenders (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 Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the total of all Non-Defaulting Lenders’ Revolving Commitments and (y) the conditions set forth in Section 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 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(j) for so long as such LC Exposure is outstanding;
(iii) if the Borrowers cash collateralize any portion of such Defaulting Lender’s LC Exposure pursuant to this Section 2.18(c), the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 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 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 the Issuing Bank or any Lender hereunder, all fees that otherwise would have been payable to such Defaulting Lender with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Bank until such LC Exposure is cash collateralized and/or reallocated;
(d) so long as any Lender is a Defaulting Lender, the BorrowerSwingline Lender shall not be required to fund any Swingline Loan and the Issuing Bank shall not be required to issue, at amend or increase any Letter of Credit, unless it is satisfied that the Borrower’s election, may elect to terminate such Defaulting Lender’s Commitment hereunder; provided that (A) such termination must be related exposure of the Defaulting Lender’s entire Commitment, (B) Lender will be 100% covered by the NonRevolving Commitments of the non-Defaulting Lenders shall each have and/or cash collateral will be provided by the option to accept an assignment of the Defaulting Lender’s Commitment pursuant to Borrowers in accordance with Section 2.15 in lieu of a termination of Commitments pursuant to this Section 2.1(b)(ii2.18(c), (C) to the extent that the Nonand participating interests in any such newly issued or increased Letter of Credit or newly made Swingline Loan shall be allocated among non-Defaulting Lenders do in a manner consistent with Section 2.18(c)(i) (and Defaulting Lenders shall not take an assignment as provided in the immediately preceding clause participate therein); and
(B), the Borrower shall pay all amounts owed by the Borrower e) any amount payable to such Defaulting Lender in hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender’s capacity as a Revolving Lender under this Agreement and under the other Credit Documents (including principal pursuant to Section 2.16) shall, in lieu of and interest on the Revolving Advances owed being distributed to such Defaulting Lender, accrued Commitment Fees (be retained by the Administrative Agent in a segregated account and, subject to Section 2.17(a)(iii))any applicable requirements of law, and letter be applied at such time or times as may be determined by the Administrative Agent (i) first, to the payment of credit fees (subject to Section 2.17(a)(iii)) but specifically excluding any amounts owing under Section 2.11 as result of by such payment of such Advances) and shall deposit with Defaulting Lender to the Administrative Agent into hereunder, (ii) second, pro rata, to the Cash Collateral Account payment of any amounts owing by such Defaulting Lender to the Issuing Bank or Swingline Lender hereunder, (iii) third, 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, (iv) fourth, if so determined by the Administrative Agent and the Borrower Representative, held in such account as cash collateral in for future funding obligations of the amount equal Defaulting Lender under this Agreement, (v) fifth, pro rata, to the payment of any amounts owing to the Borrowers or the Lenders as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers or any Lender against such Defaulting Lender as a result of such Defaulting Lender’s ratable share breach of the Letter of Credit Exposure (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 Borrower its obligations under this Section 2.1(b)(iiAgreement and (vi) if and only if at such time, the Borrower has elected, or is then electingsixth, 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 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 which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 4.02 are satisfied, such payment shall cease be applied solely to be a “Revolving Lender” hereunder for prepay the Loans of, and reimbursement obligations owed to, all purposes except that such Lender’s rights and Non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations as a Revolving Lender under Sections 2.12owed to, 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 any Defaulting Lender’s Commitment shall be deemed terminated, and (3) such Defaulting Lender shall be relieved of its obligations hereunder as a “Revolving Lender” except as to its obligations under Section 8.4(b) and Section 9.1 shall continue with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Revolving Lender” hereunder, provided that, any such termination will not be deemed to be a waiver or release of any claim . In the event that the Borrower, the Administrative Agent, the Swingline LenderBorrower Representative, the Issuing Bank and the Swingline Lender or any each agrees that a Defaulting Lender may have against has adequately remedied all matters that caused such Lender to be a Defaulting Lender. Notwithstanding anything herein , then the Swingline Exposure and LC Exposure of the Lenders shall be readjusted to reflect the contrary, inclusion of such Lender’s Revolving Commitment and on such date such Lender shall purchase at par such of the Non-Defaulting Lenders’ option to take an assignment Loans of the other Lenders (other than Swingline Loans) as provided in Section 2.1(b)(ii)(B) the Administrative shall determine may be exercised by a Non-Defaulting Lender necessary in its sole and absolute discretion and nothing contained herein shall obligate any Non-Defaulting order for such Lender to take any hold such assignmentLoans in accordance with its Applicable Percentage.
Appears in 1 contract
Sources: Credit Agreement (Allscripts-Misys Healthcare Solutions, Inc.)
Defaulting Lender. At (a) Notwithstanding anything to the contrary contained herein, in the event any time when a Lender is then a Defaulting Lender, all rights and obligations hereunder of such Defaulting Lender and of the Borrowerother parties hereto shall be modified to the extent of the express provisions of this Section 2.22 so long as such Lender is a Defaulting Lender.
(i) except as otherwise expressly provided for in this Section 2.22, at the Borrower’s electionRevolving Advances shall be made pro rata from Lenders holding Revolving Commitments which are not Defaulting Lenders based on their respective Revolving Commitment Percentages, may elect and no Revolving Commitment Percentage of any Lender or any pro rata share of any Revolving Advances required to terminate be advanced by any Lender shall be increased as a result of any Lender being a Defaulting Lender. Amounts received in respect of principal of any type of Revolving Advances
(ii) fees pursuant to Section 3.3(b) hereof shall cease to accrue in favor of such Defaulting Lender’s .
(iii) if any Swing Loans are outstanding or any Letter of Credit Obligations (or drawings under any Letter of Credit for which Issuer has not been reimbursed) are outstanding or exist at the time any such Lender holding a Revolving Commitment hereunder; provided that becomes a Defaulting Lender, then:
(A) such termination must be of the Defaulting Lender’s entire Commitment, (B) Participation Commitment in the outstanding Swing Loans and of the Maximum Undrawn Amount of all outstanding Letters of Credit shall be reallocated among Non-Defaulting Lenders shall each have the option to accept an assignment of the Defaulting Lender’s Commitment pursuant to Section 2.15 holding Revolving Commitments in lieu of a termination of Commitments pursuant to this Section 2.1(b)(ii), (C) proportion to the extent that the respective Revolving Commitment Percentages of such Non-Defaulting Lenders do to the extent (but only to the extent) that (x) such reallocation does not take an assignment as provided cause the aggregate sum of outstanding Revolving Advances made by any such Non-Defaulting Lender holding a Revolving Commitment plus such Lender’s reallocated Participation Commitment in the immediately preceding clause (B), the Borrower shall pay all amounts owed by the Borrower to outstanding Swing Loans plus such Defaulting Lender in such Defaulting Lender’s capacity as a Revolving Lender under this Agreement and under reallocated Participation Commitment in the other aggregate Maximum Undrawn Amount of all outstanding Letters of Credit Documents (including principal of and interest on to exceed the Revolving Advances owed to Commitment Amount of any such Non-Defaulting Lender, accrued Commitment Fees (subject to Section 2.17(a)(iii)), and letter of credit fees (subject to Section 2.17(a)(iii)) but specifically excluding any amounts owing under Section 2.11 as result of such payment of such Advances) and shall deposit with 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 2.17), (D) a Defaulting Lender’s Commitment may be terminated by the 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 (Ey) such termination shall not be permitted if a no Default or Event of Default has occurred and is continuing at such time; (B) if the time reallocation described in clause (A) above cannot, or can only partially, be effected, Borrowers shall within one Business Day following notice by Agent (x) first, prepay any outstanding Swing Loans that cannot be reallocated, and (y) second, cash collateralize for the benefit of Issuer, Borrowers’ obligations corresponding to 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 Participation Commitment in the Maximum Undrawn Amount of all Letters of Credit (after giving effect to any partial reallocation pursuant to this clause (iiA) and above) in accordance with Section 3.2(b) for so long as such Obligations are outstanding; (C) if Borrowers cash collateralize any portion of such Defaulting Lender’s Participation Commitment in the payment and deposit Maximum Undrawn Amount of amounts required all Letters of Credit pursuant to be made by the Borrower under clause (B) and (C) above, (1) Borrowers shall not be required to pay any fees to such Defaulting Lender shall cease pursuant 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 Section 3.2(a) with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Revolving Lender” hereunder, (2) such Defaulting Lender’s Revolving Commitment shall be deemed terminated, and Percentage of Maximum Undrawn Amount of all Letters of Credit during the period such Defaulting Lender’s Participation Commitment in the Maximum Undrawn Amount of all Letters of Credit are cash collateralized; (3D) such if Defaulting Lender’s Participation Commitment in the Maximum Undrawn Amount of all Letters of Credit is reallocated pursuant to clause (A) above,
(c) A Defaulting Lender shall not be relieved entitled to give instructions to Agent or to approve, disapprove, consent to or vote on any matters relating to this Agreement and the Other Documents, and all amendments, waivers and other modifications of its obligations hereunder as this Agreement and the Other Documents may be made without regard to a Defaulting Lender and, for purposes of the definition of “Revolving Lender” except as to its obligations under Section 8.4(b) and Section 9.1 Required Lenders”, a Defaulting Lender shall continue with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Revolving Lender” hereunder, provided that, any such termination will not be deemed to be a Lender, to have any outstanding Advances or a Revolving Commitment Percentage, Term Loan Commitment Percentage, provided that this clause (c) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification described in clauses (i) or (ii) of Section 16.2(b). (d) Other than as expressly set forth in this Section 2.22, 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 2.22 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 claim that the default by such Defaulting Lender hereunder, or shall prejudice any rights which any Borrower, the Administrative Agent, the Swingline Lender, the Issuing Lender Agent or any Lender may have against any Defaulting Lender as a result of any default by such Defaulting Lender. Notwithstanding anything herein to the contrary, the Non-Defaulting Lenders’ option to take an assignment as provided in Section 2.1(b)(ii)(B) may be exercised by a Non-Defaulting Lender in its sole and absolute discretion and nothing contained herein shall obligate any Non-Defaulting Lender to take any such assignmenthereunder.
Appears in 1 contract
Sources: Revolving Credit, Term Loan and Security Agreement (Cca Industries Inc)
Defaulting Lender. At Notwithstanding any time when provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then so long as such Revolving Lender is then a Defaulting Lender: (a) if any Swing Line Exposure or LC Exposure exists at the time a Revolving Lender becomes a Defaulting Lender, the BorrowerBorrower shall within one Business Day following notice by the Administrative Agent (i) first, at prepay such Swing Line Exposure (or, if the Borrower’s electionSwing Line Lenders shall agree, may elect to terminate cash collateralize 100% of such Defaulting Lender’s Commitment hereunder; provided that Swing Line Exposure (Aother than the portion of such Swing Line Exposure referred to in clause (b) such termination must be of the Defaulting Lender’s entire Commitmentdefinition of such term) therein and otherwise in accordance with the procedures set forth in Section 2.04(k) for so long as such Swing Line Exposure is outstanding) and (ii) second, (B) the Non-Defaulting 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 pursuant to this Section 2.1(b)(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 in cash collateralize 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 2.17(a)(iii)), and letter of credit fees (subject to Section 2.17(a)(iii)) but specifically excluding any amounts owing under Section 2.11 as result of such payment of such Advances) and shall deposit with the Administrative Agent into the Cash Collateral Account cash collateral LC Exposure in the 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; (b) 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’s ratable share 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 Letter Revolving Commitment of Credit Exposure (including any such Letter of Credit Exposure that has been reallocated Defaulting Lender pursuant to Section 2.172.10(a), (D) a Defaulting Lender’s Commitment may be terminated by the 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 (Ed) such termination shall not be permitted if a Default has occurred the Revolving Exposure and is continuing at the time unused Revolving Commitment 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 Commitment shall be deemed terminated, and (3) such Defaulting Lender shall be relieved of its obligations hereunder as a “Revolving Lender” except as to its obligations under Section 8.4(b) and Section 9.1 shall continue with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Revolving Lender” hereunder, provided that, any such termination will not be deemed included in determining whether the Required Lenders have taken or may take any action hereunder (including any consent to be a any amendment, waiver or release of any claim other modification pursuant to Section 10.02); provided, that the Borrower, the Administrative Agent, the Swingline Lender, the Issuing Lender or any Lender may have against such Defaulting Lender. Notwithstanding anything herein this clause (d) shall not apply to the contrary, the Non-Defaulting Lenders’ option to take an assignment as provided in Section 2.1(b)(ii)(B) may be exercised by vote of a Non-Defaulting Lender in its sole and absolute discretion and nothing contained herein shall obligate any Non-Defaulting the case of an amendment, waiver or other modification requiring the consent of such Lender to take any such assignmentor each Lender affected thereby.
Appears in 1 contract
Sources: Incremental Loan Amendment (Sinclair Broadcast Group Inc)
Defaulting Lender. At 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) if any Letter of Credit Outstandings exist at the time when a Revolving Lender becomes a Defaulting Lender then:
(i) all or any part of the participating risk in such Letter of Credit Outstandings shall be reallocated among the Revolving Lenders that are Non-Defaulting Revolving Lenders in accordance with their respective RL Percentage but only to the extent (x) the sum of all Revolving Extensions of Credit of all Revolving Lenders that are Non- Defaulting Revolving Lenders does not exceed the aggregate amount of all Revolving 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 of such Revolving Lender do not exceed its Revolving Loan Commitment at such time and (z) the conditions set forth in Section 7.2 are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one (1) Business Day following notice by the Administrative Agent Collateralize in a manner reasonably satisfactory to the applicable Issuing Lender such Defaulting Lender’s RL Percentage of all Letter of Credit Outstandings (after giving effect to any partial reallocation pursuant to clause (i) above) for so long as such Letter of Credit Outstandings exist;
(iii) the Borrower shall not be required to pay any Letter of Credit Fees to such Defaulting Lender pursuant to Section 4.1(b) with respect to such Defaulting Lender’s RL Percentage of Letter of Credit Outstandings;
(iv) if the participating risk in Letter of Credit Outstandings of the Non-Defaulting Lenders is reallocated pursuant to this Section 2.17(a), then the Letter of Credit Fees payable to the Revolving Lenders pursuant to Section 4.1(b) shall be adjusted in accordance with such Non-Defaulting Lenders’ RL Percentages; and
(v) if any Defaulting Lenders’ RL Percentage of Letter of Credit Outstandings is neither Collateralized nor reallocated pursuant to this Section 2.17(a), then, without prejudice to any rights or remedies of any Issuing Lender or any Revolving Lender hereunder, all Letter of Credit Fees payable under Section 4.1(b) with respect to such Defaulting Lender’s RL Percentage of Letter of Credit Outstandings shall be payable to each Issuing Lender until such portion of such Letter of Credit Outstandings is Collateralized or reallocated.
(b) Notwithstanding anything to the contrary contained in Section 2.1(d) or Section 3, so long as any Revolving Lender is a Defaulting Lender (i) no Issuing Lender shall be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure will be 100.00% covered by the Revolving Loan Commitments of the Non-Defaulting Lenders or collateral has been provided by the Borrower in accordance with Section 2.17(a), and (ii) participating interests in any such newly issued or increased Letter of Credit shall be allocated among Revolving Lenders that are Non-Defaulting Lenders in a manner consistent with Section 2.17(a) (and Defaulting Lenders shall not participate therein).
(c) In the event that the Administrative Agent, the Borrower, each Issuing Lender 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 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 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 other amounts received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Section 11 or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 13.2 shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to each Issuing Lender hereunder; third, to Cash Collateralize each Issuing Lender’s Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.17(a)(ii); fourth, as the Borrower may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement; fifth, if so determined by the Administrative Agent and the Borrower, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations 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 Credit issued under this Agreement, in accordance with Section 2.17(a)(ii); sixth, to the payment of any amounts owing to the Lenders, or each Issuing Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender or Issuing Lender against such Defaulting Lender as a result of such 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 as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such 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 reimbursement obligations with respect to Letters of Credit in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 7.2 were satisfied and waived, such payment shall be applied solely to pay the Loans of, and reimbursement obligations with respect to Letters of Credit owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or reimbursement obligations with respect to Letters of Credit owed to, such Defaulting Lender 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). 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 2.17(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 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 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 BorrowerAdministrative Agent will so notify the parties hereto, at the Borrower’s election, may elect to terminate such Defaulting Lender’s Commitment hereunder; provided that (A) such termination must be whereupon as of the Defaulting Lender’s entire Commitment, effective date specified in such notice and subject to any conditions set forth therein (B) the Non-Defaulting Lenders shall each have the option which may include arrangements with respect to accept an assignment of the Defaulting Lender’s Commitment pursuant to Section 2.15 in lieu of a termination of Commitments pursuant to this Section 2.1(b)(iiany Cash Collateral), (C) that Lender will, to the extent applicable, purchase at par that portion of outstanding Loans of the Non-Defaulting other Lenders do not or take an assignment such other actions as provided the Administrative Agent may determine to be necessary to cause the Loans and funded and unfunded participations in the immediately preceding clause (B), the Borrower shall pay all amounts owed Letters of Credit to be held pro rata by the Borrower to such Defaulting Lender Lenders in such Defaulting Lender’s capacity as a Revolving Lender under this Agreement and under accordance with the other Credit Documents applicable Commitments (including principal of and interest on the Revolving Advances owed to such Defaulting Lender, accrued Commitment Fees (subject without giving effect to Section 2.17(a)(iii2.17(a)(i)), and letter of credit fees (subject to Section 2.17(a)(iii)) but specifically excluding any amounts owing under Section 2.11 as result of whereupon 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 2.17), (D) a Defaulting Lender’s Commitment may be terminated by the 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 will cease to be a “Revolving Defaulting Lender” hereunder for all purposes except ; provided that such Lender’s rights and obligations as a Revolving Lender under Sections 2.12, 2.14, 8.4 and 9.1 shall continue no adjustments will be made retroactively with respect to events and occurrences occurring before fees accrued or concurrently with its ceasing to be payments made by or on behalf of the Borrower while that Lender was a “Revolving Lender” hereunder, (2) such Defaulting Lender’s Commitment shall be deemed terminated; provided further that except to the extent otherwise expressly agreed by the affected parties, and (3) such no change hereunder from Defaulting Lender shall be relieved of its obligations hereunder as a “Revolving Lender” except as to its obligations under Section 8.4(b) and Section 9.1 shall continue with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Revolving Lender” hereunder, provided that, any such termination Lender will not be deemed to be constitute a waiver or release of any claim of any party hereunder arising from that the Borrower, the Administrative Agent, the Swingline Lender, the Issuing Lender or any Lender may have against such having been a Defaulting Lender. Notwithstanding anything herein to the contrary, the Non-Defaulting Lenders’ option to take an assignment as provided in Section 2.1(b)(ii)(B) may be exercised by a Non-Defaulting Lender in its sole and absolute discretion and nothing contained herein shall obligate any Non-Defaulting Lender to take any such assignment.
Appears in 1 contract
Sources: Amendment and Restatement Agreement (LEGALZOOM.COM, Inc.)
Defaulting Lender. At Notwithstanding any time when a provision of this Agreement to the contrary, if any Lender is then becomes a Defaulting Lender, then the Borrower, at following provisions shall apply for so long as such Lender is a Defaulting Lender: (a) fees shall cease to accrue on the Borrower’s election, may elect to terminate Revolving Loan Commitment of such Defaulting Lender’s Commitment hereunder; provided that (A) such termination must be of the 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 Lender pursuant to Section 2.15 in lieu 2.14(c)(i); (b) the Commitments, Loans and other Revolving Credit Obligations of a termination of Commitments pursuant to this Section 2.1(b)(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 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 2.17(a)(iii)), and letter of credit fees (subject to Section 2.17(a)(iii)) but specifically excluding any amounts owing under Section 2.11 as result of such payment of such Advances) and shall deposit with 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 2.17), (D) a Defaulting Lender’s Commitment may be terminated by the 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 not be included in determining whether the Required Lenders or Required Revolving Lenders have taken or may take any action hereunder (including any consent to be any amendment, waiver or other modification pursuant to Section 9.03); provided that this clause (b) shall not apply to the vote of a “Revolving Lender” hereunder for Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender affected thereby; (c) if any Swing Line Obligations or L/C Obligations exist at the time such Lender becomes a Defaulting Lender then: (i) all purposes except that such Lender’s rights or any part of the Swing Line Obligations 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 Commitment shall be deemed terminated, and (3) L/C Obligations of such Defaulting Lender shall be relieved reallocated among the non-Defaulting Lenders in accordance with their respective Pro Rata Shares of its obligations hereunder as a “the Revolving Lender” except as to its obligations under Section 8.4(b) and Section 9.1 shall continue with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Revolving Lender” 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 Swingline Lender, the Issuing Lender or any Lender may have against such Defaulting Lender. Notwithstanding anything herein Facility but only to the contrary, extent the Nonsum of all non-Defaulting Lenders’ option to take an assignment as provided in Section 2.1(b)(ii)(B) may be exercised by a NonRevolving Credit Obligations plus such Defaulting Lender’s Swing Line Obligations and L/C Obligations does not exceed the total of all non-Defaulting Lender in its sole and absolute discretion and nothing contained herein shall obligate any Non-Defaulting Lender to take any such assignment.Lenders’ Revolving Loan Commitments; 125 #98412540v7
Appears in 1 contract
Defaulting Lender. At Notwithstanding any time when 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 then a Defaulting Lender:
(a) fees shall cease to accrue on the unfunded portion of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.3;
(b) the Revolving Commitment and Revolving Extensions of Credit of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, modification, waiver or supplement pursuant to Section 10.1); provided, that this clause (b) shall NAI-1513061749v11 39 not apply to the vote of a Defaulting Lender in the case of an amendment, modification, waiver or supplement requiring the consent of such Lender or each Lender affected thereby;
(c) if any Swingline Exposure exists at the time such Lender becomes a Defaulting Lender, then:
(i) the Swingline Exposure (other than any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.20(c)) of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Revolving Percentages but only to the extent the sum of all non-Defaulting Lenders’ Revolving Extensions of Credit do not exceed the total of all non-Defaulting Lenders’ Revolving Commitments; and
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one (1) Business Day following written notice by the Administrative Agent prepay the portion of such Defaulting Lender’s Swingline Exposure (other than any portion thereof referred to in the parenthetical in such clause (i)) that has not been reallocated as set forth in such clause;
(d) so long as such Lender is a Defaulting Lender, the Borrower, at Swing Line Lender shall not be required to fund any Swing Line Loan unless it is satisfied that the Borrower’s election, may elect to terminate related exposure and such Defaulting Lender’s Commitment hereunder; provided that (A) such termination must then outstanding Swing Line Exposure will be fully covered by the Revolving Commitments of the Defaulting Lender’s entire Commitment, (B) the Nonnon-Defaulting 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 pursuant to this Section 2.1(b)(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 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 2.17(a)(iii)), and letter of credit fees (subject to Section 2.17(a)(iii)) but specifically excluding any amounts owing under Section 2.11 as result of such payment of such Advances) and shall deposit with 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 2.17), (D) a Defaulting Lender’s Commitment may be terminated by the 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 participating interests in any such funded Swing Line Loan will be allocated among the non-Defaulting Lenders in a manner consistent with clause (Ec)(i) above (and such termination Defaulting Lender shall not participate therein); and
(e) in the event that the Administrative Agent, the Borrower and the Swing Line Lender agree in writing that a Defaulting Lender has adequately remedied all matters that caused such Lender to be permitted if a Default has occurred and is continuing at Defaulting Lender, then the time Swingline Exposure of the Lenders shall be readjusted to reflect the inclusion of such election Lender’s Revolving Commitment and termination. Upon written notice to on such date such Lender shall purchase at par such of the Defaulting Lender Revolving Loans and participations in Swing Line Loans of the other Lenders as the Administrative Agent of the Borrower’s election shall determine may be necessary in order for such Lender to terminate a Defaulting Lender’s Commitment pursuant to this clause (ii) hold such Revolving Loans and the payment and deposit of amounts required to be made by the Borrower under clause (B) and (C) aboveparticipations in Swing Line Loans in accordance with its Revolving Percentage, (1) whereupon 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 Commitment shall be deemed terminated, and (3) such Defaulting Lender shall be relieved of its obligations hereunder as a “Revolving Lender” except as to its obligations under Section 8.4(b) and Section 9.1 shall continue with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Revolving Lender” 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 Swingline Lender, the Issuing Lender or any Lender may have against such Defaulting Lender. Notwithstanding anything herein to the contrary, the Non-Defaulting Lenders’ option to take an assignment as provided in Section 2.1(b)(ii)(B) may be exercised by a Non-Defaulting Lender in its sole and absolute discretion and nothing contained herein shall obligate any Non-Defaulting Lender to take any such assignment.
Appears in 1 contract
Defaulting Lender. At . Notwithstanding any time when a provision of this Agreement to the contrary, if any Lender is then becomes a Defaulting Lender, then the Borrower, following provisions shall apply for so long as such Lender is a Defaulting Lender:
4.11.1 The Unused Line Fee shall cease to accrue on 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 subsection 4.11.2(v) below);
4.11.2 If any Letters of Credit are outstanding at the Borrower’s election, may elect to terminate such time a Lender becomes a Defaulting Lender’s Commitment hereunder; provided that Lender then:
(A) the exposure under all or any part of any Letters of Credit shall be reallocated among the applicable non-Defaulting Lenders that are Revolving Credit Lenders in accordance with their respective Pro Rata Percentages but only to the extent the sum of all such termination must be non-Defaulting Lenders’ Revolving Credit Loans outstanding, plus the LC Amount, does not exceed the total of the all such non-Defaulting Lender’s entire Commitment, Lenders’ Revolving Credit Commitments; and (B) the Non-Defaulting 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 pursuant to this Section 2.1(b)(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 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 2.17(a)(iii)), and letter of credit fees (subject to Section 2.17(a)(iii)) but specifically excluding any amounts owing under Section 2.11 as result of such payment of such Advances) and shall deposit with 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 2.17), (D) a Defaulting Lender’s Commitment may be terminated by the 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” hereunderany such exposure so reallocated, (2) such Defaulting Lender’s Commitment shall be deemed terminated, and (3) such each applicable non-Defaulting Lender shall be relieved of its obligations hereunder as a “Revolving Lender” except as to its obligations under Section 8.4(b) and Section 9.1 shall continue with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Revolving Lender” hereunder, provided that, any such termination will not be deemed to be have irrevocably and unconditionally purchased from the 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 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 non-Defaulting L▇▇▇▇▇’s increased exposure following such reallocation;
(ii) if the reallocations described in clause (i) above cannot, or can only partially, be effected, Borrowers shall within one (1) Business Day following notice by Administrative Agent (after giving effect to any partial reallocation pursuant to clause (i) above) cash collateralize Letters of Credit in an amount equal to the product of such Defaulting Lender’s Pro Rata Percentage times the total LC Amount;
(iii) if any portion of the Letters of Credit is cash collateralized pursuant to clause (ii) above, Borrowers shall not be required to pay the Letter of Credit fee described in clause (i) of Section 3.4 with respect to such portion so long as it is cash collateralized;
(iv) if any portion of the exposure under Letters of Credit of such Defaulting Lender is reallocated to the non-Defaulting Lenders pursuant to clause (i) above, then the Letter of Credit fee described in clause (i) of Section 3.4 with respect to such portion so reallocated to each such non-Defaulting Lender shall be paid to such non-Defaulting Lender; and
(v) if any portion of the exposure under Letters of Credit of such Defaulting Lender is neither cash collateralized nor reallocated pursuant to this subsection 4.11.2, then, without prejudice to any rights or remedies of Issuing Bank or any Lender hereunder, the Unused Line Fee that otherwise would have been payable to such Defaulting Lender (with respect to the portion of such Defaulting Lender’s Revolving Credit Commitment that was utilized by such Letters of Credit) and the Letter of Credit fee described in clause (i) of Section 3.4 payable with respect to such Letters of Credit shall be payable to Issuing Bank until such Letters of Credit are fully cash collateralized and/or reallocated.
4.11.3 So long as any Lender is a Defaulting Lender, no Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the Borrowerrelated exposure will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Lenders and/or cash collateralized in accordance with subsection 4.11.2, and participations in any such newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in accordance with their respective Pro Rata Percentages (and Defaulting Lenders shall not participate therein).
4.11.4 Any amount payable to a Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise but excluding subsection 13.5.6) may, in lieu of being distributed to such Defaulting Lender, be retained by Administrative Agent in a segregated non-interest bearing account and, subject to any Applicable Law, be applied at such time or times as may be determined by Administrative Agent (i) first, to the payment of any amounts owing by such Defaulting Lender to Administrative Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to Issuing Bank hereunder, (iii) third, 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 Administrative Agent, (iv) fourth, if so determined by Administrative Agent and B▇▇▇▇▇▇▇▇, held in such account as cash collateral for future funding obligations of the Swingline LenderDefaulting Lender under this Agreement, (v) fifth, pro rata, to the Issuing Lender payment of any amounts owing to Borrowers or the Lenders as a result of any judgment of a court of competent jurisdiction obtained by any Borrower or any Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement and (vi) sixth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided, that if such payment is a prepayment of the principal amount of any Loans or LC Obligations in respect of which a Defaulting Lender has funded its participation obligations, such payment shall be applied solely to prepay the Loans of, and LC Obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans of, or LC Obligations owed to, any Defaulting Lender.
4.11.5 In the event that Administrative Agent, Borrowers and Issuing Bank agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the exposure of the Lenders under the Letters of Credit shall be readjusted to reflect the inclusion of such L▇▇▇▇▇’s Revolving Credit Commitment and on such date such Lender shall purchase at par such of the Revolving Credit Loans of the other Lenders as Administrative Agent shall determine may be necessary in order for such Lender to hold such Revolving Credit Loans in accordance with its 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. Notwithstanding anything herein to The arrangements permitted or required by this Section 4.11 shall be permitted under this Agreement, notwithstanding any limitation on Liens or the contrary, the Non-Defaulting Lenders’ option to take an assignment as provided in Section 2.1(b)(ii)(B) may be exercised by a Non-Defaulting Lender in its sole and absolute discretion and nothing contained herein shall obligate any Non-Defaulting Lender to take any such assignmentpro rata sharing provisions or otherwise.
Appears in 1 contract
Sources: Loan, Security and Guaranty Agreement (Quest Resource Holding Corp)
Defaulting Lender. At Notwithstanding any time when a provision of this Agreement to the contrary, if any Lender is then becomes a Defaulting Lender, then the Borrower, at following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) Fees shall cease to accrue on the Borrower’s election, may elect to terminate unfunded portion of the Commitment of such Defaulting Lender’s .
(b) The Commitment hereunderamounts outstanding on the Loans of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 9.12); provided that this clause (Ab) such termination must be 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 (ii) described in clause (i) or (ii) of the first proviso in Section 9.12.
(c) If any Swing Line Exposure or L/C Exposure exists at the time such Lender becomes a Defaulting Lender’s entire Commitment, Lender then:
(Bi) all or any part of the NonSwing Line Exposure and L/C Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting 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 pursuant to this Section 2.1(b)(ii), accordance with their respective Pro Rata Shares (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 2.17(a)(iii)), and letter of credit fees (subject to Section 2.17(a)(iii)) but specifically excluding any amounts owing under Section 2.11 as result of such payment of such Advances) and shall deposit with the Administrative Agent into the Cash Collateral Account cash collateral in the amount equal calculated without regard to such Defaulting Lender’s ratable share Commitment) but only to the extent the sum of the Letter all non-Defaulting Lenders’ Extensions of Credit Exposure (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 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) plus such Defaulting Lender’s Commitment Swing Line Exposure and L/C Exposure does not exceed the total of all non-Defaulting Lenders’ Commitment. Subject to Section 16.1, no reallocation hereunder shall be deemed terminated, and (3) such Defaulting Lender shall be relieved of its obligations hereunder as a “Revolving Lender” except as to its obligations under Section 8.4(b) and Section 9.1 shall continue with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Revolving Lender” hereunder, provided that, any such termination will not be deemed to be 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;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the 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 L/C Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 8.1 for so long as such L/C Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s L/C Exposure pursuant to clause (ii) above, the Borrower shall not be required to pay any fees to such Defaulting Lender with respect to such Defaulting Lender’s L/C Exposure during the period such Defaulting Lender’s L/C Exposure is cash collateralized;
(iv) if the L/C Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders shall be adjusted in accordance with such non-Defaulting Lenders’ Pro Rata Shares; and
(v) if all or any portion of such Defaulting Lender’s L/C Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of the Issuing Lender or any other Lender hereunder, all fees payable under Section 3.3(a) with respect to such Defaulting Lender’s L/C Exposure shall be payable to the Issuing Lender until and to the extent that such L/C Exposure is reallocated and/or cash collateralized.
(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 any Issuing Lender shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrower.
(e) Any amount payable to such Defaulting Lender 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 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, to the payment of any amounts owing by such Defaulting Lender to the Swing Line Lender or any Issuing Lender hereunder, (iii) third, to the cash collateralization of any participating interest in any Swing Line Loan or Letter of Credit (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, held in such account as cash collateral 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 Credit issued under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders, the Issuing Lenders or Swing Line Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, the Issuing Lenders 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 or Event of Default exists, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting 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 a payment of the principal amount of any Loans or Letters of Credit in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 4.2 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and participating interests in any Letter of Credit owed to, all non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or 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 Swingline LenderBorrower, the Swing Line Lender and the Issuing Lender or any each agrees that a Defaulting Lender may have against has adequately remedied all matters that caused such Lender to be a Defaulting Lender. Notwithstanding anything herein , then the Swing Line Exposure and L/C Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Pro Rata Share and on such date such 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 Lender to hold such Loans in accordance with its 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 contraryextent otherwise expressly agreed by the affected parties, the Non-Defaulting Lenders’ option to take an assignment as provided in Section 2.1(b)(ii)(B) may be exercised by a Non-Defaulting Lender in its sole and absolute discretion and nothing contained herein shall obligate any Non-no change hereunder from Defaulting Lender to take 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 assignmentLender 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.
Appears in 1 contract
Defaulting Lender. At If any time when a Lender is then becomes a Defaulting Lender, then the Borrower, at the Borrower’s election, may elect to terminate following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) such Defaulting Lender’s Revolving Commitment hereunder; provided that (A) such termination must and outstanding Revolving Loans shall be excluded for purposes of calculating the fee payable to 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 entire Commitment, Revolving Commitment or Revolving Loans (B) the Nonin each case not including any fee in connection with any portion of such Defaulting Lenders Revolving Commitment that has been reallocated to non-Defaulting Lenders shall each have the option to accept an assignment of the Defaulting Lender’s Commitment pursuant to Section 2.15 10.21(d) hereof).
(b) the Revolving Commitments and Loans of such Defaulting Lender shall not be included in lieu of a termination of Commitments determining whether all Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to this Section 2.1(b)(ii10.5), .
(Cc) to the extent that the Non-Defaulting Lenders do not take an assignment as provided in the immediately preceding clause (B)event a Defaulting Lender has defaulted on its obligation to fund any Revolving Loan, or purchase any participation pursuant to Section 1.5 hereof, until such time as the Borrower shall pay all amounts owed by the Borrower Default Excess with respect 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 has been reduced to zero, any prepayments or repayments on account of and interest on the Revolving Advances owed Loans or participations pursuant to Section 1.5, in each case to the extent they would be otherwise be payable to such Defaulting Lender, accrued Commitment Fees (subject shall be applied first, to Section 2.17(a)(iii)), and letter the payment of credit fees (subject to Section 2.17(a)(iii)) but specifically excluding any amounts owing under Section 2.11 as result by such Defaulting Lender to Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such payment Defaulting Lender to the LC Issuer of such Advances) Lender Letters of Credit and shall deposit with the Administrative Agent into the Cash Collateral Account to each Letter of Credit guarantor/indemnitor in respect of Supported Letters of Credit; third, to provide cash collateral in the amount equal of 103% of any 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 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 Agent; fifth, if so determined by Agent and the Borrowers, to be held in a Deposit Account 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) 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; sixth, to the payment of any amounts owing to Agent, the Lenders, any LC Issuers or any Letter of Credit guarantor/indemnitor as a result of any judgment of a court of competent jurisdiction obtained by Agent, any Lender, any LC Issuer or 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, so 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 eighth, to such 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 Letter of Credit Liabilities in respect of which such Defaulting Lender has not fully funded its appropriate share and (y) such Loans or Letter of Credit Liabilities were made at a time when the conditions set forth in Section 1.6 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and Letter of Credit Liabilities owed to, all non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or Letter of Credit Liabilities owed to, such Defaulting 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 ratable share 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 Exposure (including Liabilities pursuant to this Section 10.21(d), the Borrowers shall not be required to pay any such Letter of Credit Exposure that has been reallocated pursuant Fees to Section 2.17), (D) a Defaulting Lender’s Commitment may be terminated by the 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) the portion of such Defaulting Lender’s Commitment shall be deemed terminated, Pro Rata Share of the Letter of Credit Liabilities which have been cash collateralized (and (3) such the Defaulting Lender shall not be relieved entitled to receive any such fees);
(iv) if the Defaulting ▇▇▇▇▇▇’s Pro Rata Share of its obligations 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 as a “Revolving Lender” except as to its obligations under Section 8.4(b) and Section 9.1 shall continue with respect to events 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 occurrences occurring before neither Agent nor any Lender shall be required to provide or concurrently with its ceasing to 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 a “100% covered by the Revolving Lender” hereunderCommitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers, provided that, and participating interests in any such termination will 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 be deemed participate therein).
(f) No reallocation permitted pursuant to be 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 Borrower, the Administrative event that Agent, the Swingline LC Issuers and each Letter of Credit guarantor/indemnitor each agrees in writing that a Defaulting Lender has adequately remedied all matters which caused such Lender to become a Defaulting Lender, then the Issuing Pro Rata Shares of the Letter of Credit Liabilities of the Lenders shall be readjusted to reflect the inclusion of such ▇▇▇▇▇▇’s Revolving Commitment and on such date such Lender shall purchase at par such of the Revolving Loans of the other Lenders or participations in the Revolving Loans as Agent shall determine may be necessary in order for such Lender to hold such Revolving Loans or participations in accordance with its 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 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 Lender Letter of Credit guarantor/indemnitor, as applicable, may have against such Defaulting Lender. Notwithstanding anything herein to the contrary, the Non-Defaulting Lenders’ option to take an assignment as provided in Section 2.1(b)(ii)(B) may be exercised by a Non-Defaulting Lender in its sole and absolute discretion and nothing contained herein shall obligate any Non-Defaulting Lender to take any such assignment.
Appears in 1 contract
Sources: Loan and Security Agreement (Nine Energy Service, Inc.)
Defaulting Lender. At any time when (a) If a Lender is then becomes, and during the period it remains, a Defaulting Lender, the Borrower, at the Borrower’s election, may elect to terminate following provisions shall apply: (i) such Defaulting Lenders’ Ratable Share of the L/C Exposure and the Swing Line Advances will, subject to the limitation in the first proviso below, automatically be reallocated (effective on the day such Lender becomes a Defaulting Lender’s Commitment hereunder) 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, whether on the date that such Lender is required to purchase its participation in any Letter of Credit or otherwise); provided that (A) such termination must be the sum of the each Non-Defaulting Lender’s entire Commitmentaggregate principal amount of Revolving Credit Advances, (B) the Non-Defaulting 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 pursuant to this Section 2.1(b)(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 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 2.17(a)(iii)), and letter of credit fees (subject to Section 2.17(a)(iii)) but specifically excluding any amounts owing under Section 2.11 as result of such payment of such Advances) and shall deposit with the Administrative Agent into the Cash Collateral Account cash collateral in the amount equal to such Defaulting Lender’s ratable allocated share of the Letter L/C Exposure and allocated share of Credit Exposure (including the principal amount of outstanding Swing Line Advances may not in any event exceed the Commitment of such Letter of Credit Exposure that has been reallocated pursuant to Section 2.17), (D) a Non- Defaulting Lender’s Commitment may be terminated by the 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 Lender as in effect at the time of such election reallocation 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) neither such reallocation nor any payment by a Non-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 Commitment shall be deemed terminated, and (3) such Defaulting Lender shall be relieved of its obligations hereunder as a “Revolving Lender” except as to its obligations under Section 8.4(b) and Section 9.1 shall continue with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Revolving Lender” hereunder, provided that, any such termination pursuant thereto will not be deemed to be constitute a waiver or release of any claim that the Borrower, the Administrative Agent, the Swingline Lenderany Issuing Bank, the Issuing Lender any Swing Line Bank or any other Lender may have against such Defaulting Lender. Notwithstanding anything herein to the contrary, the Non-Defaulting Lenders’ option to take an assignment as provided in Section 2.1(b)(ii)(B) may be exercised by a Non-Defaulting Lender in its sole and absolute discretion and nothing contained herein shall obligate any Non-or cause such Defaulting Lender to take any such assignment.be a Non- Defaulting Lender; 34 NYDOCS02/1188161
Appears in 1 contract
Sources: Credit Agreement (Gatx Corp)
Defaulting Lender. At 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) Facility Fees shall cease to accrue on the unfunded Commitment of such Defaulting Lender pursuant to Section 2.11;
(b) such Defaulting Lender and the Commitment and Extensions of Credit of such Defaulting Lender shall not be included in determining whether the Lenders, 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, consent, waiver or other modification pursuant to Section 10.1); provided, that this clause (b) shall not apply in the case of an amendment, waiver or other modification that has the effect of (i) increasing the amount or extending the expiration date of all or 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 L/C Obligations exist at the time 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 Defaulting Lender shall be reallocated among the Domestic Lenders that are not Defaulting Lenders in accordance with their respective Domestic Percentages (calculated without regard to such Defaulting Lender) but only to the extent the sum of all non-Defaulting Lenders’ Domestic Extensions of Credit plus outstanding Domestic Competitive Loans plus such L/C Obligations does not exceed the total of all Domestic Lenders that are not Defaulting Lenders’ Domestic Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Company or any Domestic Subsidiary Borrower shall, at any time when a and from time to time following notice by the Administrative Agent, Collateralize for the benefit of each Issuing Lender that is then not, itself, a Defaulting Lender, the Borrower, at the Borrower’s election, may elect to terminate such Defaulting Lender’s Commitment hereunder; provided that (A) such termination must be of the 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 2.15 in lieu of a termination of Commitments pursuant to this Section 2.1(b)(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 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 2.17(a)(iii)), and letter of credit fees (subject to Section 2.17(a)(iii)) but specifically excluding any amounts owing under Section 2.11 as result of such payment of such Advances) and shall deposit with the Administrative Agent into the Cash Collateral Account cash collateral in the amount equal Borrowers’ obligations corresponding to such Defaulting Lender’s ratable share L/C Obligations (after giving effect to any partial reallocation pursuant to clause (i) above) for so long as such L/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 Letter 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 Credit Exposure Default shall have then occurred and be continuing);
(including iii) if the Company or any Subsidiary Borrower Collateralizes any portion of 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 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 L/C Obligations pursuant to this clause (ii) and above, neither the payment and deposit of amounts Company nor any relevant Subsidiary Borrower shall be required to be made by pay any fees to such Defaulting Lender pursuant to Section 3.3 with respect to such Defaulting Lender’s L/C Obligations during the Borrower under period and to the extent such Defaulting Lender’s L/C Obligations are so Collateralized;
(iv) if the L/C Obligations of the Defaulting Lenders are reallocated pursuant to clause (B) and (Ci) above, then the fees payable to the non-Defaulting Lenders pursuant to Section 2.11 and Section 3.3, as applicable, shall be adjusted in accordance with such non-Defaulting Lenders’ Domestic Percentages of the Domestic Commitments calculated without regard to such Defaulting Lender’s Domestic Percentage of the Domestic Commitments; and
(1v) if all or any portion of such Defaulting Lender’s L/C Obligations is neither reallocated nor Collateralized pursuant to 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 Letter of Credit Fees payable under Section 3.3 with respect to such Defaulting Lender’s L/C Obligations shall be payable to the applicable Issuing Lender until and to the extent that such L/C Obligations are so reallocated and/or Collateralized; and
(d) no Issuing Lender shall be required to issue, renew, 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 cease to be not participate therein). If (i) 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 Insolvency Event with respect to events the parent company of any Domestic Lender shall occur following the Closing Date and occurrences occurring before for so long as such event shall continue or concurrently with (ii) any Domestic Lender has defaulted in fulfilling its ceasing obligations under one or more other agreements in which such Domestic Lender commits to be a “Revolving Lender” hereunderextend credit, (2) such Defaulting Lender’s Commitment shall be deemed terminated, and (3) such Defaulting no Issuing Lender shall be relieved required to issue, amend or increase any Letter of its obligations hereunder as Credit, unless such Issuing Lender shall have entered into arrangements with the Company or such Domestic Lender, satisfactory to such Issuing Lender, to defease any risk to it in respect of such Domestic Lender hereunder. In the event that a “Revolving Domestic Lender becomes a Defaulting Lender” except as , the Administrative Agent shall give notice to its obligations under Section 8.4(b) the Company and Section 9.1 shall continue with respect to events and occurrences occurring before or concurrently with its ceasing to be each affected Issuing Lender stating that such Domestic Lender has become a “Revolving Defaulting Lender” hereunder, provided that, any such termination will not be deemed to be a waiver or release . In the event that each of any claim that the Borrower, the Administrative Agent, the Swingline Company, each relevant Subsidiary Borrower and each affected Issuing Lender agrees that a Defaulting Lender has adequately remedied all matters that caused such Defaulting Lender to be a Defaulting Lender, then the Issuing Lender or any Lender may have against L/C Obligations of the Domestic Lenders shall be readjusted to reflect the inclusion of such Defaulting Lender. Notwithstanding anything herein to ’s Domestic Commitment and, on such date, such Domestic Lender shall purchase at par such of the contrary, Loans and/or participations in the Non-Defaulting Lenders’ option to take an assignment L/C Obligations of the other Domestic Lenders as provided in Section 2.1(b)(ii)(B) the Administrative Agent shall determine may be exercised by a Non-Defaulting Lender necessary in its sole and absolute discretion and nothing contained herein shall obligate any Non-Defaulting order for such Domestic Lender to take any hold such assignmentDomestic Loans and participations in the L/C Obligations in accordance with its Domestic Percentage of the Domestic Commitments.
Appears in 1 contract
Sources: 5 Year Revolving Credit Agreement (General Motors Financial Company, Inc.)
Defaulting Lender. At any time when a Revolving Lender is then a Defaulting Lender, the Borrower, at the Borrower’s election, may elect to terminate such Defaulting Lender’s Revolving Commitment hereunder; provided that (A) such termination must be of the Defaulting Lender’s entire Revolving Commitment, (B) the Non-Defaulting Lenders shall each have the option to accept an assignment of the Defaulting Lender’s Commitment pursuant to Section 2.15 in lieu of a termination of Commitments pursuant to this Section 2.1(b)(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 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 the proviso Section 2.17(a)(iii2.7(a)), and letter of credit fees (subject to Section 2.17(a)(iii)) but specifically excluding any amounts owing under Section 2.11 2.10 as result of such payment of such Revolving 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 Dollar Equivalent of the Letter of Credit Exposure (including any such Letter of Credit Exposure that has been reallocated pursuant to Section 2.172.16), and (DC) a Defaulting Lender’s Revolving Commitment may be terminated by the Borrower under this Section 2.1(b)(ii2.1(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, Lenders and (Ey) such termination shall not be permitted if a no Default has occurred and is continuing at the time of such election and terminationcontinuing. Upon written notice to the Defaulting Lender and the 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 2.122.11, 2.142.13, 8.4 8.5 and 9.1 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 Revolving Commitment shall be deemed terminated, and (3) such Defaulting Lender shall be relieved of its obligations hereunder as a “Revolving Lender” except as to its obligations under Section 8.4(b) 8.5 and Section 9.1 9.2(d) which obligations shall continue with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Revolving Lender” hereunder, provided that, any such termination will not be deemed to be a waiver or release of any claim that by the Borrower, the Administrative Agent, the Swingline Swing Line Lender, the Issuing Lender Lenders or any Lender may have against such Defaulting Lender. Notwithstanding anything herein to the contrary, the Non-Defaulting Lenders’ option to take an assignment as termination of commitments, rights and obligations provided for in Section 2.1(b)(ii)(Bthis clause (iii) shall not affect rights and obligations that a Lender may be exercised by a Non-Defaulting Lender have in its sole and absolute discretion and nothing contained herein shall obligate any Non-Defaulting Lender to take any such assignmentcapacity as a Term Lender.
Appears in 1 contract
Defaulting Lender. At any time when a Lender is then a Defaulting Lender, the Borrower, at the Borrower’s its election, may elect to terminate such Defaulting Lender▇▇▇▇▇▇’s Commitment hereunder; provided that (A) such termination must be of the Defaulting Lender’s entire Commitment, (B) the Non-Defaulting Lenders shall each have the option to accept an assignment all of the Defaulting Lender’s Commitment pursuant to Section 2.15 in lieu of a termination of Commitments pursuant to this Section 2.1(b)(ii)Commitments, (CB) 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 it 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 Unused Line Fees (subject to Section 2.17(a)(iii2.18(a)(iii)), and letter of credit fees (subject to Section 2.17(a)(iii)2.18(a)(iii) but specifically excluding any amounts owing under Section 2.11 as result of such payment of such Advances)) and and, if such Defaulting Lender is a Defaulting Revolving Lender, 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 Dollar equivalent of the Letter of Credit Exposure (including any such Letter of Credit Exposure portion thereof that has been reallocated pursuant to Section 2.172.18), (DC) a Defaulting Lender’s Commitment Commitments may be terminated by the Borrower under this Section 2.1(b)(ii2.1(c)(iii) 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 (ED) such termination shall not be permitted if a no 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 Commitments pursuant to this clause (iiiv) 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 2.122.11, 2.142.13, 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 “Revolving Lender” hereunder, (2) such Defaulting Lender’s Commitment Commitments shall be deemed terminated, and (3) such Defaulting Lender shall be relieved of its obligations hereunder as a “Revolving Lender” except as to its obligations under Section 8.4(b) Sections 8.4 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 “Revolving Lender” hereunder, provided that, any such termination will not be deemed to be a waiver or release of any claim that the Borrowerby ▇▇▇▇▇▇▇▇, the Administrative Agent, the Swingline LenderLenders, the Issuing Lender Lenders or any Lender may have against such Defaulting Lender. Notwithstanding anything herein to the contrary, the Non-Defaulting Lenders’ option to take an assignment as provided in Section 2.1(b)(ii)(B) may be exercised by a Non-Defaulting Lender in its sole and absolute discretion and nothing contained herein shall obligate any Non-Defaulting Lender to take any such assignment.
Appears in 1 contract
Defaulting Lender. At (a) Notwithstanding any time when a provision of this Agreement to the contrary, if any Lender is then becomes a Defaulting Lender, then the Borrowerfollowing provisions shall apply for so long as such Lender is a Defaulting Lender:
(i) the standby fees payable pursuant to Section 2.9 shall cease to accrue on the unused portion of the Commitment of such Defaulting Lender;
(ii) a Defaulting Lender shall not be included in determining whether, and the Commitment and the rateable share of the Accommodations Outstanding of such Defaulting Lender shall not be included in determining whether, all Lenders or the Majority Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 12.1(b)), provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender that (A) materially and adversely affects such Defaulting Lender differently than other affected 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 Borrower’s electiontime 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) Any 5 Year Fronting Documentary Credit Lender or any 5 Year Swingline Lender may elect require a Defaulting Lender to terminate 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 a Lender becomes a Defaulting Lender, then:
(i) to the extent the Defaulting Lender has not provided cash collateral for its Defaulting Lender Exposure pursuant to Section 12.9(c) above, such Defaulting Lender Exposure shall be reallocated among the non-Defaulting Lenders under the 5 Year Facility in accordance with their respective rateable share (disregarding any Defaulting Lender’s Commitment hereunder; provided that (Aunder the 5 Year Facility) such termination must be of the 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 2.15 in lieu of a termination of Commitments pursuant to this Section 2.1(b)(ii), (C) but only to the extent that the Nonsum of (A) the aggregate Equivalent U.S. $ Amount of the Accommodations Outstanding under the 5 Year Facility made by any non-Defaulting Lenders do not take an assignment as provided in the immediately preceding clause Lender and outstanding at such time, plus (B), the Borrower shall pay all amounts owed by the Borrower to ) such Defaulting Lender in such non-Defaulting Lender’s capacity as a Revolving Lender under this Agreement and under rateable share (after giving effect to the other Credit Documents (including principal of and interest on the Revolving Advances owed to such Defaulting Lender, accrued Commitment Fees (subject to Section 2.17(a)(iii)), and letter of credit fees (subject to Section 2.17(a)(iii)reallocation contemplated herein) but specifically excluding any amounts owing under Section 2.11 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 Defaulting Lender Exposure, does not exceed such Letter of Credit Exposure that has been reallocated pursuant to Section 2.17), (D) a non-Defaulting Lender’s Commitment may under the 5 Year Facility; and
(ii) if the reallocation described in Section 12.9(d)(i) above cannot, or can only partially, be terminated effected, the Borrowers shall within one Business Day following notice by the Borrower 5 Year Swingline Lenders or 5 Year Fronting Documentary Credit Lenders prepay amounts outstanding as Swingline Advances and under this Fronted Documentary Credits to the extent any such reallocation cannot be effected (in the case of Fronted Documentary Credits by the deposit of cash in accordance with Section 2.1(b)(ii) if and only if at such time5.11(a), the Borrower provisions of which Section shall apply thereto as if a demand has electedbeen made pursuant thereto by each 5 Year Fronting Documentary Credit Lender in respect of the applicable amount of each outstanding Fronted Documentary Credits).
(e) So long as any Lender is a Defaulting Lender under the 5 Year Facility, a 5 Year Fronting Documentary Credit Lender or is then electinga 5 Year Swingline Lender, to terminate the Commitments of all then existing Defaulting Lendersas applicable, and (E) such termination shall not be permitted if a Default has occurred and required to issue any Fronted Documentary Credits or make any Swingline Advances unless, in each case, it is continuing at satisfied that the time related exposure will be 100% covered by the Commitment of such election and termination. Upon written notice to the non-Defaulting Lender and the Administrative Agent of the Borrower’s election to terminate a Defaulting Lender’s Commitment pursuant to this clause (iiLenders in accordance with Section 12.9(d) and the payment and deposit of amounts required to participating interests in any such newly issued Fronted Documentary Credits or Swingline Advances shall be made by the Borrower under clause allocated among non-Defaulting Lenders in a manner consistent with Section 12.9(d).
(Bf) and (C) above, (1) such Defaulting If any Lender shall cease to be a “Revolving Defaulting Lender” hereunder for all purposes except that , then, upon becoming aware of the same, the Administrative Agent shall notify the other Lenders and (in accordance with the written direction of the Administrative Agent) such Lender (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 Accommodations Outstanding equal in total to such Lender’s rights rateable share thereof without regard to Section 12.9(a).
(g) Each Defaulting Lender indemnifies the Borrowers for any losses, claims, costs, damages or liabilities (including reasonable out-of-pocket expenses and obligations reasonable legal fees on a solicitor and his own client basis) incurred by any Borrower 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 Commitment shall be deemed terminated, and (3) result of such Defaulting Lender shall be relieved failing to comply with the terms of this Agreement including any failure to fund its obligations hereunder as a “Revolving Lender” except as to its obligations under Section 8.4(b) and Section 9.1 shall continue with respect to events and occurrences occurring before or concurrently with its ceasing portion of any Advances required to be a “Revolving Lender” made by it 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 Swingline Lender, the Issuing Lender or any Lender may have against such Defaulting Lender. Notwithstanding anything herein to the contrary, the Non-Defaulting Lenders’ option to take an assignment as provided in Section 2.1(b)(ii)(B) may be exercised by a Non-Defaulting Lender in its sole and absolute discretion and nothing contained herein shall obligate any Non-Defaulting Lender to take any such assignment.
Appears in 1 contract
Sources: Revolving Credit Facility (Canadian Pacific Kansas City LTD/Cn)
Defaulting Lender. At Notwithstanding any time when a provision of this Agreement to the contrary, if any Lender is then becomes a Defaulting Lender, then the Borrowerfollowing provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) fees shall cease to accrue on the Commitment of such Defaulting Lender pursuant to Section 2.6;
(b) the Commitment and Extensions of Credit of such Defaulting Lender shall not be included in determining whether the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.1); provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender affected thereby;
(c) if any Swingline Exposure or any L/C Obligations exist at the Borrower’s election, may elect time such Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and L/C Obligations of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages but only to terminate the extent the sum of all non-Defaulting Lenders’ Extensions of Credits plus such Defaulting Lender’s Commitment hereunder; provided that (A) such termination must be Swingline Exposure and L/C Obligations does not exceed the total of the Defaulting Lender’s entire Commitment, (B) the Nonall non-Defaulting Lenders shall each have Lenders’ Commitments;
(ii) if the option to accept an assignment of the Defaulting Lender’s Commitment pursuant to Section 2.15 reallocation described in lieu of a termination of Commitments pursuant to this Section 2.1(b)(ii), (C) to the extent that the Non-Defaulting Lenders do not take an assignment as provided in the immediately preceding clause (B)i) above cannot, or can only partially, be effected, the Borrower shall pay all amounts owed 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 L/C Obligations (after giving effect to any partial reallocation pursuant to clause (i) above) for so long as such L/C Obligations are outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s L/C Obligations pursuant to clause (ii) above, the Borrower shall not be required to pay any fees to such Defaulting Lender in pursuant to Section 3.3 with respect to such Defaulting Lender’s capacity as a Revolving Lender under this Agreement and under L/C Obligations during the other Credit Documents (including principal of and interest on the Revolving Advances owed to period such Defaulting Lender’s L/C Obligations are cash collateralized;
(iv) if the L/C Obligations of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, accrued Commitment Fees (subject then the fees payable to the Lenders pursuant to Section 2.17(a)(iii))2.6 and Section 3.3 shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; and
(v) if all or any portion of such Defaulting Lender’s L/C Obligations is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of the Issuing Lender or any other Lender hereunder, and letter of credit fees (subject to Section 2.17(a)(iii)) but specifically excluding any amounts owing payable under Section 2.11 as result of such payment of such Advances) and shall deposit 3.3 with the Administrative Agent into the Cash Collateral Account cash collateral in the amount equal respect to such Defaulting Lender’s ratable share L/C Obligations shall be payable to the Issuing Lender until and to the extent that such L/C Obligations are reallocated and/or cash collateralized; and
(d) so long as such Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline 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 and the Defaulting Lender’s then outstanding L/C Obligations will be 100% covered by the Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 2.21(c), and participating interests in any newly made Swingline Loan or any newly issued or increased Letter of Credit Exposure shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.21(c)(i) (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 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 not participate therein). If (i) 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 Bankruptcy Event with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Revolving Lender” hereunder, (2) such Defaulting Lender’s Commitment shall be deemed terminated, and (3) such Defaulting Parent of any Lender shall be relieved of its obligations hereunder occur following the date hereof and for so long as such event shall continue or (ii) the Swingline Lender or the Issuing Lender has a “Revolving Lender” except as to good faith belief that any Lender has defaulted in fulfilling its obligations under Section 8.4(b) and Section 9.1 one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall continue with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Revolving Lender” hereunder, provided that, any such termination will not be deemed required to fund any Swingline Loan and the Issuing Lender shall not be a waiver required to issue, amend or release increase any Letter of Credit, unless 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 defease any claim risk to it in respect of such Lender hereunder. In the event that the Borrower, the Administrative Agent, the Borrower, the Swingline Lender, Lender and the Issuing Lender or any each agrees that a Defaulting Lender may have against has adequately remedied all matters that caused such Lender to be a Defaulting Lender. Notwithstanding anything herein , then the Swingline Exposure and L/C Obligations of the Lenders shall be readjusted to reflect the contrary, inclusion of such Lender’s Commitment as the Non-Defaulting Lenders’ option to take an assignment as provided in Section 2.1(b)(ii)(B) Administrative Agent shall determine may be exercised by a Non-Defaulting Lender necessary in its sole and absolute discretion and nothing contained herein shall obligate any Non-Defaulting order for such Lender to take any hold such assignmentLoans in accordance with its Applicable Percentage.
Appears in 1 contract
Defaulting Lender. At 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 Commitment of such Defaulting Lender pursuant to Section 2.3;
(b) such Defaulting Lender and the Commitment and Extensions of Credit of such Defaulting Lender shall not be included in determining whether 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, consent, waiver or other modification pursuant to Section 10.1); provided, that this clause (b) shall not apply in the case of an amendment, waiver or other modification that has the effect of (i) increasing the amount or extending the 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 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 Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their Percentages (calculated without regard to such Defaulting Lender) but only to the extent the sum of all non-Defaulting Lenders’ Extensions of Credit plus such L/C Obligations does not exceed the total of all non-Defaulting Lenders’ Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, any Loan Party may, at any time when a and from time to time following notice by the Administrative Agent, Collateralize for the benefit of each Issuing Lender that is then not, itself, a Defaulting Lender, the Borrower, at the Borrower’s election, may elect to terminate such Defaulting Lender’s Commitment hereunder; provided that (A) such termination must be of the 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 2.15 in lieu of a termination of Commitments pursuant to this Section 2.1(b)(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 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 2.17(a)(iii)), and letter of credit fees (subject to Section 2.17(a)(iii)) but specifically excluding any amounts owing under Section 2.11 as result of such payment of such Advances) and shall deposit with the Administrative Agent into the Cash Collateral Account cash collateral in the amount equal obligations corresponding to such Defaulting Lender’s ratable share of the Letter of Credit Exposure L/C Obligations (including after giving effect to any such Letter of Credit Exposure that has been reallocated partial reallocation pursuant to Section 2.17), (D) a Defaulting Lender’s Commitment may be terminated by the 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 (Ci) above) for so long as such L/C Obligations are outstanding or, (1) if sooner, so long as such Defaulting Lender shall cease to be remains a “Revolving Lender” hereunder for Defaulting Lender (it being expressly understood and agreed that all purposes except that accrued interest on 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 Commitment Collateralization shall be deemed terminated, for the account of the applicable Loan Party and (3) such Defaulting Lender shall be relieved paid to such Loan Party at any time and from time to time upon its request therefor; provided, that no Event of its obligations hereunder as a “Revolving Lender” except as to its obligations under Section 8.4(b) Default shall have then occurred and Section 9.1 shall continue with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Revolving Lender” 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 Swingline Lender, the Issuing Lender or any Lender may have against such Defaulting Lender. Notwithstanding anything herein to the contrary, the Non-Defaulting Lenders’ option to take an assignment as provided in Section 2.1(b)(ii)(B) may be exercised by a Non-Defaulting Lender in its sole and absolute discretion and nothing contained herein shall obligate any Non-Defaulting Lender to take any such assignment.continuing);
Appears in 1 contract
Sources: Credit Agreement (General Motors Co)
Defaulting Lender. At any 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 hereunderhereunder 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 2.15 2.13 in lieu of a termination of Commitments pursuant to this Section 2.1(b)(ii2.1(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 2.17(a)(iii2.6(a)), and letter of credit fees (subject to Section 2.17(a)(iii)) but specifically excluding any amounts owing under Section 2.11 2.9 as result of such payment 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 (including other than any such Letter of Credit Exposure that has been reallocated pursuant to Section 2.172.14), (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(b)(ii2.1(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 (EF) such termination shall not be permitted if a an Event of Default has occurred and is continuing at the time of such election and terminationcontinuing. Upon written notice to the Defaulting Lender and the Administrative Agent of the Borrower’s election to terminate a Defaulting Lender’s Revolving Commitment and CapEx Commitment pursuant to this clause (iiiii) 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 “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, 2.14, 8.4 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 8.4(b) and Section 9.1 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 Swingline Swing Line Lender, the Issuing Lender or any Lender may have against such Defaulting Lender. Notwithstanding anything herein to the contrary, (x) 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 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 Revolving Commitment pursuant to this clause (iii) must occur concurrently with a termination of such Defaulting Lender’s CapEx Commitments. Notwithstanding anything herein to the contrary, the Non-Defaulting Lenders’ option to take an assignment as provided in Section 2.1(b)(ii)(B2.1(c)(iii)(B) may be exercised by a Non-Defaulting Lender in its sole and absolute discretion and nothing contained herein shall obligate any Non-Defaulting Lender to take any such assignment.
Appears in 1 contract
Defaulting Lender. At Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then, for so long as such Lender is a Defaulting Lender:
(i) if any LC Exposure exists at the time when a Lender is then a Defaulting Lender, the BorrowerBorrower shall within two Business Days after notice from the Administrative Agent, at cash collateralize the Borrower’s election, may elect to terminate such Defaulting Lender’s Commitment hereunder; provided that (A) such termination must be of the Defaulting Lender’s entire Commitment, (B) the Non-Defaulting Lenders shall each have the option to accept LC Exposure in an assignment of the Defaulting Lender’s Commitment pursuant to Section 2.15 in lieu of a termination of Commitments pursuant to this Section 2.1(b)(ii), (C) amount equal 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 LC Exposure of 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 2.17(a)(iii)), and letter of credit fees (subject to Section 2.17(a)(iii)) but specifically excluding any amounts owing under Section 2.11 as result of such payment of such Advances) and shall deposit accordance with the Administrative Agent into the Cash Collateral Account provisions of paragraph (j) of this Section 2.04 and at all times thereafter provide and maintain cash collateral in the accordance with such provision in an amount equal to such Defaulting Lender’s ratable share of the LC Exposure from time to time; and
(ii) no Issuing Bank will be required to issue, amend or increase any Letter of Credit Exposure (including any such Letter of Credit Exposure unless it is satisfied that cash collateral has been reallocated or will be provided by the Borrower in accordance with clause (i) above. In the event the Borrower provides cash collateral pursuant to this Section 2.172.04(k), (Di) a Defaulting Lender’s Commitment may be terminated by the 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 an amount of such election and termination. Upon written notice cash collateral equal 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 Commitment shall Applicable Percentage of any LC Disbursement will be deemed terminated, applied as a reimbursement by the Borrower of any LC Disbursement immediately prior to any funding by the Lenders of their participations in such LC Disbursement pursuant to Section 2.04(d) and (3ii) the Lenders other than such Defaulting Lender shall Lenders will be relieved of its obligations hereunder as a “Revolving Lender” except as required to its obligations fund their participations in the remaining unreimbursed LC Disbursement under Section 8.4(b2.04(d) and Section 9.1 shall continue in accordance with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Revolving Lender” hereunder, provided that, any such termination will not be deemed to be a waiver or release their Applicable Percentages determined without taking into account the Commitment of any claim that the Borrower, the Administrative Agent, the Swingline Lender, the Issuing Lender or any Lender may have against such Defaulting Lender. Notwithstanding anything herein to the contrary, the Non-Defaulting Lenders’ option to take an assignment as provided in Section 2.1(b)(ii)(B) may be exercised by a Non-Defaulting Lender in its sole and absolute discretion and nothing contained herein shall obligate any Non-Defaulting Lender to take any such assignment.”
Appears in 1 contract
Sources: Five Year Revolving Credit Agreement (Land O Lakes Inc)
Defaulting Lender. At Notwithstanding any time when a provision of this Agreement to the contrary, if any Lender is then becomes a Defaulting Lender, either as a result of being a Non-Paying Lender or otherwise, then the Borrower, at following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) the Borrower’s election, may elect standby fees payable pursuant to terminate Section 3.9(g) shall cease to accrue on the unused portion of the Operating Facility Commitment Amount and the Individual Syndicated Facility Commitment Amount of such Defaulting Lender’s ;
(b) a Defaulting Lender and its Individual Commitment hereunderAmount and its Rateable Portion of the Aggregate Principal Amount of such Defaulting Lender under the Credit Facilities, or any of them, shall not be included in determining whether all Lenders or the Majority Lenders, have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 17.17); provided that any waiver, amendment or modification requiring the consent of (i) all Lenders or (ii) each affected Lender that affects such Defaulting Lender materially and adversely differently than other affected Lenders shall require the consent of such Defaulting Lender;
(c) subject to Section 5.7(b) and 5.8(f), for the purposes of any Advance requested hereunder while there is a Defaulting Lender, each Lender’s Rateable Portion thereof shall be calculated based on such Lender’s (A) such termination must be Operating Facility Commitment Amount relative to the Operating Facility Commitment Amount as reduced by the Operating Facility Commitment Amount of the Defaulting Lender’s entire Commitment, in the case of the Operating Facility, or (B) Individual Syndicated Facility Commitment Amount relative to the Non-Defaulting Lenders shall each have Syndicated Facility Commitment Amount as reduced by the option to accept an assignment Individual Syndicated Facility Commitment Amount of the Defaulting Lender’s Commitment pursuant to Section 2.15 in lieu of a termination of Commitments pursuant to this Section 2.1(b)(ii), (C) to the extent that the Non-Defaulting Lenders do not take an assignment as provided in the immediately preceding clause case of the Syndicated Facility;
(B), d) the Borrower shall pay all amounts owed by the Borrower to Agent may require such Defaulting Lender in such Defaulting Lender’s capacity as a Revolving Lender under this Agreement to pay to the Agent for deposit into an escrow account maintained by 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 2.17(a)(iii)), and letter of credit fees (subject to Section 2.17(a)(iii)) but specifically excluding any amounts owing under Section 2.11 as result of such payment of such Advances) and shall deposit with the Administrative Agent into the Cash Collateral Account cash collateral in the name of the Agent an amount equal to such Defaulting Lender’s ratable share maximum contingent obligations hereunder to the Agent to the extent permitted by applicable Law;
(e) to the extent permitted by applicable Law, the Agent shall be entitled to withhold and deposit in one or more non-interest bearing cash collateral accounts in the name of the Letter of Credit Exposure Agent all amounts (including any such Letter of Credit Exposure that has been reallocated whether principal, interest, fees or otherwise) received by the Agent and due to a Defaulting Lender pursuant to Section 2.17)this Agreement, (D) for so long as such Lender is a Defaulting Lender’s Commitment may , which amounts shall be terminated used by the Borrower under this Section 2.1(b)(iiAgent:
(i) if and only if at such time, the Borrower has elected, or is then electingfirst, to terminate reimburse the Commitments 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 all then existing any Advances made by a Lender in order to fund a shortfall created by a Defaulting LendersLender and, and (E) such termination shall not be permitted if a Default has occurred and is continuing at the time upon receipt of such election and termination. Upon written notice repayment, each such Lender shall be deemed to have assigned to the Defaulting Lender and such incremental portion of such Advances;
(iii) third, to cash collateralize all other obligations of such Defaulting Lender to the Administrative Agent of the Borrower’s election to terminate a Defaulting Lender’s Commitment owing pursuant to this clause (ii) and the payment and deposit of amounts required Agreement in such amount as shall be determined from time to be made time by the Borrower under clause (B) and (C) aboveAgent in its discretion, (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) including such Defaulting Lender’s Commitment shall be deemed terminated, and (3) such Defaulting Lender shall be relieved of obligation to pay its obligations hereunder as a “Revolving Lender” except as to its obligations under Section 8.4(b) and Section 9.1 shall continue with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Revolving Lender” hereunder, provided that, any such termination will not be deemed to be a waiver or release ’s Rateable Portion of any claim that indemnification, reimbursement or expense reimbursement amounts not paid by the Borrower;
(iv) fourth, to fund from time to time the Defaulting Lender’s Rateable Portion of the Obligations; and
(f) for the avoidance of doubt, the Administrative Agent, the Swingline Lender, the Issuing Lender or any Lender may have against such Borrower shall retain and reserve its other rights and remedies respecting each Defaulting Lender. Notwithstanding anything herein to the contrary, the Non-Defaulting Lenders’ option to take an assignment as provided in Section 2.1(b)(ii)(B) may be exercised by a Non-Defaulting Lender in its sole and absolute discretion and nothing contained herein shall obligate any Non-Defaulting Lender to take any such assignment.
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Defaulting Lender. At Notwithstanding any time when a provision of this Agreement to the contrary, if any Lender is then becomes a Defaulting Lender, then the Borrowerfollowing 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 Borrowertime such Lender becomes a Defaulting Lender then:
(i) all or any part of suchthe 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 electionSwingline 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, may elect 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 terminate 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 2.20(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 2.20(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 2.20(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 hereunder; provided that (Awas utilized by such LC Exposure) and letter of credit fees payable under Section 2.10(b) with respect to such termination must be of the Defaulting Lender’s entire CommitmentLC 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, (B) no Swingline Lenders shall be required to fund any Swingline Loan and the NonIssuing 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 shall each have and/or cash collateral will be provided by the option to accept an assignment of the Defaulting Lender’s Commitment pursuant to Section 2.15 Borrowers in lieu of a termination of Commitments pursuant to accordance with this Section 2.1(b)(ii2.20(d), (C) and participating interests inSwingline Exposure related to the extent that the Nonany 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 do in a manner consistent with Section 2.20(c)(i) (and Defaulting Lenders shall not take an assignment as provided in the immediately preceding clause participate therein); and
(B), the Borrower shall pay all amounts owed by the Borrower e) any amount payable to such Defaulting Lender in hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender’s capacity as a Revolving Lender under this Agreement and under the other Credit Documents (including principal pursuant to Section 2.17(d) but excluding Section 2.18(b)) shall, in lieu of and interest on the Revolving Advances owed being distributed to such Defaulting Lender, accrued Commitment Fees (be retained by the Administrative Agent in a segregated account and, subject to Section 2.17(a)(iii))any applicable requirements of law, and letter be applied at such time or times as may be determined by the Administrative Agent (i) first, to the payment of credit fees (subject to Section 2.17(a)(iii)) but specifically excluding any amounts owing under Section 2.11 as result of by such payment of such Advances) and shall deposit with Defaulting Lender to the Administrative Agent into hereunder, (ii) second, pro rata, to the Cash Collateral Account payment of any amounts owing by such Defaulting Lender to any Issuing Lender or Swingline Lender hereunder, (iii) third, if so determined by the Administrative Agent or requested by an ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, 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 amount equal 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, 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 or a 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 ratable share breach of the Letter of Credit Exposure (including any such Letter of Credit Exposure that has been reallocated pursuant to Section 2.17)its obligations under this Agreement, (Dvii) seventh, to the payment of any amounts owing to the Borrowers as a Defaulting Lender’s Commitment may be terminated result of any judgment of a court of competent jurisdiction obtained by the 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) Borrowers against 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) result of such Defaulting Lender’s Commitment shall be deemed terminatedbreach of its obligations under this Agreement, and (3viii) 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 relieved 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 its any Loans, or reimbursement obligations hereunder as a “Revolving Lender” except as to its obligations under Section 8.4(b) and Section 9.1 shall continue with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Revolving Lender” hereunder, provided thatowed to, any such termination will not be deemed to be a waiver or release of any claim Defaulting Lender. In the event that the Borrower, the Administrative Agent, the Swingline LenderCompany and, the Issuing Lenders and the Swingline Lenders agree that a Defaulting Lender or any has adequately remedied all matters that caused such Lender may have against 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. Notwithstanding anything herein to ’s Revolving Credit Commitment and on such date such Defaulting Lender shall purchase at par such of the contrary, Loans of the Non-Defaulting Lenders’ option to take an assignment other Lenders (other than Swingline Loans) as provided in Section 2.1(b)(ii)(B) the Administrative Agent shall determine may be exercised by a Non-Defaulting Lender necessary in its sole and absolute discretion and nothing contained herein shall obligate any Non-order for such Defaulting Lender to take any hold such assignmentLoans in accordance with its Applicable Percentage.
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Defaulting Lender. At Notwithstanding any time when a provisions of this Agreement to the contrary, if any Lender is then becomes a Defaulting Lender, then the Borrowerfollowing provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 2.12(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 Commitment and the LC Exposure of such Defaulting Lender shall not be included in determining whether all 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 9.02); provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender 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 BorrowerAdministrative 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 electionbreach of its obligations under this Agreement; seventh, may elect so long as no Default or Event of Default exists, to terminate 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 Revolving 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 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 the sum of all non-Defaulting Lenders’ Credit Exposures plus 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’ Commitments; or
(ii) if the reallocation described in paragraph (i) above cannot, or can only partially, be effected, the Borrowers shall, without prejudice to any other right or remedy available to them hereunder or under law, within two Business Days following notice by the Administrative Agent, Cash collateralize 105.0% of such Defaulting Lender’s Commitment hereunder; 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 paragraph (i) above and any Cash collateral provided that by the Defaulting Lender) or make other arrangements reasonably satisfactory to the Administrative Agent and to the applicable Issuing Bank and/or Swingline Lender with respect to such LC Exposure and obligations to fund participations. Cash collateral (or the appropriate portion thereof) provided to reduce LC Exposure or other obligations shall be released promptly following (A) such termination must be the elimination of the applicable LC Exposure or other obligations giving rise thereto (including by the termination of Defaulting Lender’s entire CommitmentLender status of the applicable Lender (or, as appropriate, its assignee following compliance with Section 2.19)) or (B) the NonAdministrative Agent’s good faith determination that there exists excess Cash collateral.
(iii) if the LC Exposure of the non-Defaulting 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 are reallocated pursuant to this Section 2.1(b)(ii2.22(d), (C) then the fees payable to the extent that Lenders pursuant to Sections 2.12(a) and (b), as the Noncase may be, shall be adjusted in accordance with such non-Defaulting Lenders do not take an assignment as provided in the immediately preceding clause Lenders’ Applicable Percentages; or
(B), the Borrower shall pay all amounts owed by the Borrower to such Defaulting Lender in such iv) if any Defaulting Lender’s capacity as a Revolving Lender under LC Exposure is not Cash collateralized, prepaid or reallocated pursuant to 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 2.17(a)(iii)2.22(d), and then, without prejudice to any rights or remedies of the applicable Issuing Bank or any Lender hereunder, all letter of credit fees (subject to Section 2.17(a)(iii)) but specifically excluding any amounts owing payable under Section 2.11 as result of such payment of such Advances2.12(b) and shall deposit with the Administrative Agent into the Cash Collateral Account cash collateral in the amount equal respect to such Defaulting Lender’s ratable share of the Letter of Credit LC Exposure (including any such Letter of Credit Exposure that has been reallocated pursuant to Section 2.17), (D) a Defaulting Lender’s Commitment may shall be terminated by the 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 payable 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) applicable Issuing Bank until such Defaulting Lender’s Commitment LC Exposure is Cash collateralized.
(e) So long as any Lender is Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be deemed terminatedrequired to issue, extend, create, incur, amend or increase any Letter of Credit unless it is reasonably satisfied that the related exposure will be 105.0% covered by the Commitments of the non-Defaulting Lenders and/or Cash collateral will be provided by the Borrowers in accordance with Section 2.22(d), and participating interests in any such newly issued, extended or created Letter of Credit or newly made Swingline Loan shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.22(d)(i) (3and Defaulting Lenders shall not participate therein).
(f) such In the event that the Administrative Agent, the Borrowers, the Issuing Banks and the 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 relieved readjusted to reflect the inclusion of its obligations hereunder as a “such Lender’s ABL Revolving Lender” except as to its obligations under Section 8.4(bCommitment (if any) and Section 9.1 on such date such Lender shall continue 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 Lender to hold such Loans or participations in accordance with its ABL Applicable Percentage; provided that no adjustments will be made retroactively with respect to events fees accrued or payments made by or on behalf of the Borrowers while that Lender was a Defaulting Lender; and occurrences occurring before or concurrently with its ceasing provided, further, that except to be a “Revolving Lender” hereunderthe extent otherwise expressly agreed by the affected parties, provided that, any such termination no change hereunder from Defaulting Lender to Lender will not be deemed to be constitute a waiver or release of any claim of any party hereunder arising from that the Borrower, the Administrative Agent, the Swingline Lender, the Issuing Lender or any Lender may have against such Le▇▇▇▇’s having been a Defaulting Lender. Notwithstanding anything herein to the contrary, the Non-Defaulting Lenders’ option to take an assignment as provided in Section 2.1(b)(ii)(B) may be exercised by a Non-Defaulting Lender in its sole and absolute discretion and nothing contained herein shall obligate any Non-Defaulting Lender to take any such assignment.
Appears in 1 contract
Defaulting Lender. At Notwithstanding any time when 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) fees shall cease to accrue on the Revolving Credit Commitment of such Defaulting Lender pursuant to subsection 4.9;
(b) the Aggregate Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to subsection 11.1), provided that any waiver, amendment or modification (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 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 Defaulting Lender shall be reallocated among the non- Defaulting Lenders in accordance with their respective Revolving Credit Commitment Percentages but only to the extent the sum of all non- Defaulting Lenders' Aggregate Revolving Credit Extensions of Credit and participations in Swing Line Loans plus such Defaulting Lender's Swing Line Exposure and L/C Exposure does not exceed the total of all non-Defaulting Lenders' Revolving Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within three Business 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 Borrower's obligations corresponding to such Defaulting Lender's L/C Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) for so long as such L/C Exposure is outstanding;
(iii) if the Borrower Cash Collateralizes any portion of such Defaulting Lender's L/C Exposure pursuant to clause (ii) above, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to subsection 4.11 with respect to such Defaulting Lender's L/C Exposure during the period such Defaulting Lender's L/C Exposure is Cash Collateralized;
(iv) if the L/C Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to subsection 4.9 and subsection 4.11 shall be adjusted in accordance with such non-Defaulting Lenders' Revolving Credit Commitment Percentages; and
(v) if all or any portion of such Defaulting Lender's L/C Exposure is neither reallocated nor Cash Collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of the Issuing Lender or any other Lender hereunder, all letter of credit fees payable under subsection 4.11 with respect to such Defaulting Lender's L/C Exposure shall be payable to the Issuing Lender until and to the extent that such L/C Exposure is reallocated and/or Cash Collateralized; and
(d) so long as such Lender is a Defaulting Lender, 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 it has received assurances satisfactory to it that non- Defaulting Lenders will cover the related exposure and/or Cash Collateral will be provided by the Borrower, at the Borrower’s election, may elect to terminate such Defaulting Lender’s Commitment hereunder; provided that (A) such termination must and participating interests in any newly made Swing Line Loan or any newly issued or increased Letter of Credit shall be of the Defaulting Lender’s entire Commitment, (B) the Nonallocated among non-Defaulting 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 pursuant to this Section 2.1(b)(ii), manner consistent with subsection 4.21(c)(i) (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 2.17(a)(iii)), and letter of credit fees (subject to Section 2.17(a)(iii)) but specifically excluding any amounts owing under Section 2.11 as result of such payment of such Advances) and shall deposit with 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 2.17), (D) a Defaulting Lender’s Commitment may be terminated by the 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 not participate therein). In the event 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 Commitment shall be deemed terminated, and (3) such Defaulting Lender shall be relieved of its obligations hereunder as a “Revolving Lender” except as to its obligations under Section 8.4(b) and Section 9.1 shall continue with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Revolving Lender” 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 Swingline LenderBorrower, the Swing line Lender and the Issuing Lender or any each agrees that a Defaulting Lender may have against has adequately remedied all matters that caused such Revolving Lender to be a Defaulting Lender. Notwithstanding anything herein , then the Swing Line Exposure and L/C Exposure of the Revolving Lenders shall be readjusted to reflect the contrary, inclusion of such Revolving Lender's Commitment and on such date such Revolving Lender shall purchase at par such of the Non-Defaulting Lenders’ option to take an assignment Revolving Loans of the other Revolving Lenders (other than Swing Line Loans) as provided in Section 2.1(b)(ii)(B) the Administrative Agent shall determine may be exercised by a Non-Defaulting Lender necessary in its sole and absolute discretion and nothing contained herein shall obligate any Non-Defaulting order for such Revolving Lender to take any hold such assignmentRevolving Loans in accordance with its Revolving Credit Commitment Percentage.
Appears in 1 contract
Sources: Credit Agreement
Defaulting Lender. At Notwithstanding any time when a provision of this Agreement to the contrary, if any Lender is then becomes a Defaulting Lender, then the Borrowerfollowing provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) fees shall cease to accrue on the unfunded portion of the Revolving Commitment of such Defaulting Lender pursuant to this Agreement;
(b) the Revolving Commitment and Revolving Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, at waiver or other modification pursuant to Section 9.02); provided, that in the Borrowercase of an amendment, waiver or other modification requiring the consent of all Lenders or of each Lender affected thereby, the Defaulting Lender’s election, may elect consent shall be only be required with respect to terminate (i) a proposed increase or extension of such Defaulting Lender’s Commitment hereunder; provided that Revolving Commitments and (Aii) such termination must be a proposed reduction or excuse, or a proposed postponement of the 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’s entire Commitment;
(c) if any Swingline Exposure or LC Exposure exists at the time a Lender becomes a Defaulting Lender then:
(i) provided no Event of Default exists and is continuing, (B) all or any part of the NonSwingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting 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 pursuant to this Section 2.1(b)(ii), (C) accordance with their respective Applicable Percentages but only to the extent that the Nonsum of all 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 Lenders’ Revolving Exposures plus such Defaulting Lender’s capacity as a Swingline Exposure and LC Exposure does not exceed the total of all non-Defaulting Lenders’ Revolving Lender under this Agreement and under Commitments;
(ii) if the other Credit Documents reallocation described in clause (including principal of and interest on i) above cannot, or can only partially, be effected, the Revolving Advances owed to such Defaulting Lender, accrued Commitment Fees (subject to Section 2.17(a)(iii)), and letter of credit fees (subject to Section 2.17(a)(iii)) but specifically excluding any amounts owing under Section 2.11 as result of such payment of such Advances) and Parent shall deposit with within one Business Day following notice by the Administrative Agent into (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the Cash Collateral Account cash collateral in benefit of the amount equal Issuing Bank only the Parent’s obligations corresponding to such Defaulting Lender’s ratable share of the Letter of Credit LC Exposure (including after giving effect to any such Letter of Credit Exposure that has been reallocated partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.17), 2.04(j) for so long as such LC Exposure is outstanding;
(D) a Defaulting Lender’s Commitment may be terminated by the Borrower under this Section 2.1(b)(iiiii) if and only if at such time, the Borrower has elected, or is then electing, to terminate the Commitments Parent cash collateralizes any portion 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 Commitment LC Exposure pursuant to this Section 2.19(c), the Parent shall not be deemed terminated, and (3) required to pay any fees to such Defaulting Lender shall be relieved of its obligations hereunder as a “Revolving Lender” except as pursuant to its obligations under Section 8.4(b) and Section 9.1 shall continue 2.10 with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Revolving Lender” 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 Swingline Lender, the Issuing Lender or any Lender may have against such Defaulting Lender. Notwithstanding anything herein ’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 2.19(c), then the fees payable to the contrary, the Non-Defaulting Lenders’ option to take an assignment as provided in Section 2.1(b)(ii)(B) may be exercised by a Non-Defaulting Lender in its sole and absolute discretion and nothing contained herein shall obligate any Non-Defaulting Lender to take any such assignment.Lenders pursuant to
Appears in 1 contract
Defaulting Lender. At any time when a Lender is then a Defaulting Lender, the Borrower, at the Borrower’s 's election, may elect to terminate such Defaulting Lender’s 's Commitment hereunder; provided that (A) such termination must be of all of the Defaulting Lender’s entire 's Commitment, (B) the Non-Defaulting Lenders shall each have the option to accept an assignment of the Defaulting Lender’s Commitment pursuant to Section 2.15 in lieu of a termination of Commitments pursuant to this Section 2.1(b)(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 in such Defaulting Lender’s 's capacity as a Revolving Lender under this Agreement and under the other Credit Loan Documents (including principal of and interest on the Revolving Advances owed to such Defaulting Lender, accrued Commitment Fees (subject to Section 2.17(a)(iii2.16(a)(iii)), and letter of credit fees (subject to Section 2.17(a)(iii)2.15(a)(iii) but specifically excluding any amounts owing under Section 2.11 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 ratable share 's Applicable Percentage of the Letter of Credit Exposure (but including any such Letter of Credit Exposure portion thereof that has been reallocated pursuant to Section 2.172.15), (DC) a Defaulting Lender’s 's Commitment may be terminated by the Borrower under this Section 2.1(b)(ii2.1(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 (ED) such termination shall not be permitted if a no 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 's election to terminate a Defaulting Lender’s '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 's rights and obligations as a Revolving Lender under Sections 2.122.05(d), 2.13, 2.14, 8.4 8.03, 9.04 and 9.1 9.07 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 's Commitment shall be deemed terminated, and (3) such Defaulting Lender shall be relieved of its obligations hereunder as a “Revolving " Lender” " except as to its obligations under Section 8.4(b) 8.03 and Section 9.1 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 “Revolving " Lender” " hereunder, provided that, any such termination will not be deemed to be a waiver or release of any claim that by the Borrower, the Administrative Agent, the Swingline Lender, the Issuing Lender or any Lender may have against such Defaulting Lender. Notwithstanding anything herein to the contrary, the Non-Defaulting Lenders’ option to take an assignment as provided in Section 2.1(b)(ii)(B) may be exercised by a Non-Defaulting Lender in its sole and absolute discretion and nothing contained herein shall obligate any Non-Defaulting Lender to take any such assignment.
Appears in 1 contract
Defaulting Lender. At 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) fees shall cease to accrue on the unfunded portion of any Commitment of such Defaulting Lender pursuant to this Agreement;
(b) the Commitments and Obligations of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 9.02), 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 when a Lender becomes a Defaulting Lender then:
(i) all or any part of such Swingline Exposure and LC Exposure shall be reallocated among the Lenders which are not Defaulting Lenders (the “Non-Defaulting Lenders”) in accordance with their respective Applicable Percentages but only to the extent the sum of all Non-Defaulting Lenders’ Revolving Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the total of all Non-Defaulting Lenders’ Commitments; and
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the 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(j) for so long as such LC Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to this Section 2.20(c), the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 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 2.20(c), then the fees payable to the Lenders pursuant to Section 2.11 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 2.20(c), then, without prejudice to any rights or remedies of the Issuing Bank or any Lender hereunder, all fees that otherwise would have been payable to such Defaulting Lender with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Bank until such LC Exposure is cash collateralized and/or reallocated;
(d) so long as any Lender is a Defaulting Lender, the BorrowerSwingline Lender shall not be required to fund any Swingline Loan and the Issuing Bank shall not be required to issue, at amend or increase any Letter of Credit, unless it is satisfied that the Borrower’s election, may elect to terminate such Defaulting Lender’s Commitment hereunder; provided that (A) such termination must related exposure will be 100% covered by the Commitments of the Defaulting Lender’s entire Commitment, (B) the Nonnon-Defaulting Lenders shall each have and/or cash collateral will be provided by the option to accept an assignment of the Defaulting Lender’s Commitment pursuant to Borrower in accordance with Section 2.15 in lieu of a termination of Commitments pursuant to this Section 2.1(b)(ii2.20(c), (C) to the extent that the Nonand participating interests in any such newly issued or increased Letter of Credit or newly made Swingline Loan shall be allocated among non-Defaulting Lenders do in a manner consistent with Section 2.20(c)(i) (and Defaulting Lenders shall not take an assignment as provided in the immediately preceding clause participate therein); and
(B), the Borrower shall pay all amounts owed by the Borrower e) any amount payable to such Defaulting Lender in hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender’s capacity as a Revolving Lender under this Agreement and under the other Credit Documents (including principal pursuant to Section 2.17) shall, in lieu of and interest on the Revolving Advances owed being distributed to such Defaulting Lender, accrued Commitment Fees (be retained by the Administrative Agent in a segregated account and, subject to Section 2.17(a)(iii))any applicable requirements of law, and letter be applied at such time or times as may be determined by the Administrative Agent (i) first, to the payment of credit fees (subject to Section 2.17(a)(iii)) but specifically excluding any amounts owing under Section 2.11 as result of by such payment of such Advances) and shall deposit with Defaulting Lender to the Administrative Agent into hereunder, (ii) second, pro rata, to the Cash Collateral Account payment of any amounts owing by such Defaulting Lender to the Issuing Bank or Swingline Lender hereunder, (iii) third, 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, (iv) fourth, if so determined by the Administrative Agent and the Borrower, held in such account as cash collateral in for future funding obligations of the amount equal Defaulting Lender under this Agreement, (v) fifth, pro rata, to the payment of any amounts owing to the Borrower or the Lenders as a result of any judgment of a court of competent jurisdiction obtained by the Borrower or any Lender against such Defaulting Lender as a result of such Defaulting Lender’s ratable share breach of the Letter of Credit Exposure (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 Borrower its obligations under this Section 2.1(b)(iiAgreement and (vi) if and only if at such time, the Borrower has elected, or is then electingsixth, 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 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 which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 4.02 are satisfied, such payment shall cease be applied solely to be a “Revolving Lender” hereunder for prepay the Loans of, and reimbursement obligations owed to, all purposes except that such Lender’s rights and Non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations as a Revolving Lender under Sections 2.12owed to, 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 any Defaulting Lender’s Commitment shall be deemed terminated, and (3) such Defaulting Lender shall be relieved of its obligations hereunder as a “Revolving Lender” except as to its obligations under Section 8.4(b) and Section 9.1 shall continue with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Revolving Lender” hereunder, provided that, any such termination will not be deemed to be a waiver or release of any claim . In the event that the Borrower, the Administrative Agent, the Swingline LenderBorrower, the Issuing Bank and the Swingline Lender or any each agrees that a Defaulting Lender may have against has adequately remedied all matters that caused such Lender to be a Defaulting Lender. Notwithstanding anything herein , then the Swingline Exposure and LC Exposure of the Lenders shall be readjusted to reflect the contrary, inclusion of such Lender’s Commitment and on such date such Lender shall purchase at par such of the Non-Defaulting Lenders’ option to take an assignment Loans of the other Lenders (other than Swingline Loans) as provided in Section 2.1(b)(ii)(B) the Administrative shall determine may be exercised by a Non-Defaulting Lender necessary in its sole and absolute discretion and nothing contained herein shall obligate any Non-Defaulting order for such Lender to take any hold such assignmentLoans in accordance with its Applicable Percentage.
Appears in 1 contract
Defaulting Lender. At Notwithstanding any time when a provision of this Agreement to the contrary, if any Lender is then becomes a Defaulting Lender, then the Borrower, at the Borrower’s election, may elect to terminate following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) Fees in favor of such Defaulting Lender’s Lender only shall cease to accrue on the unfunded portion of the Commitments of, and in respect of the participation in Letters of Credit by, such Defaulting Lender pursuant to Section 4.03 and Section 4.04, and the Defaulting Lender will not be included in any distribution to the Lenders, pursuant to Section 3.03, of Commitment hereunder; provided that Fees or LC Participation Fees.
(Ab) If a Lender has any LC Exposure at any time such termination must Lender is 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 Revolver Percentages of the LC Exposure but only to the extent (x) the sum of (1) the principal amount of all non-Defaulting Lenders’ outstanding Conventional Revolving Loans and Discretionary Revolving Loans and (2) all non-Defaulting Lenders’ LC Exposure, including their pro rata shares of the Defaulting Lender’s entire CommitmentLC Exposure, does not exceed the total of all non-Defaulting Lenders’ Commitments, (By) the Nonsum of (1) the principal amount of any non-Defaulting Lenders shall each have the option to accept an assignment Lender’s outstanding Conventional Revolving Loans and Discretionary Revolving Loans and (2) such non-Defaulting Lender’s LC Exposure, including such non-Defaulting Lender’s pro rata share of the Defaulting Lender’s Commitment pursuant to Section 2.15 in lieu of a termination of Commitments pursuant to this Section 2.1(b)(ii)allocated LC Exposure, (C) to the extent that the Nondoes not exceed such 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 2.17(a)(iii))Commitment, and letter of credit fees (subject to z) the conditions set forth in Section 2.17(a)(iii)7.02 are satisfied at such time;
(ii) but specifically excluding any amounts owing under Section 2.11 as result of such payment of such Advancesif the reallocation described in clause (i) and shall deposit with 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 Agent, deposit cash collateral in the an amount equal to such Defaulting Lender’s ratable share of the Letter of Credit LC Exposure (including after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.11(j) for so long as such Letter of Credit LC Exposure is outstanding;
(iii) the Company shall not be required to pay any fees that has been reallocated are solely payable to such Defaulting Lender pursuant to Section 2.17), (D) a Defaulting Lender’s Commitment may be terminated by the 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 4.04 with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Revolving Lender” hereunder, (2) such Defaulting Lender’s Commitment LC Exposure;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.14(b), then the fees payable to the Lenders pursuant to Section 4.03 and Section 4.04 shall be deemed terminatedadjusted in accordance with such non-Defaulting Lenders’ Applicable Revolver Percentages; and
(v) to the extent any Defaulting Lender’s LC Exposure is neither cash collateralized nor reallocated pursuant to this Section 2.14(b), and (3) such Defaulting Lender shall be relieved then, without prejudice to any rights or remedies of its obligations hereunder as a “Revolving Lender” except as to its obligations under Section 8.4(b) and Section 9.1 shall continue with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Revolving Lender” 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 Swingline Lender, the Issuing Lender or any Lender may hereunder, that portion of the LC Participation Fees that would have against been payable under Section 4.04 with respect to such Defaulting Lender. Notwithstanding anything herein ’s LC Exposure had it not been a Defaulting Lender that has not been cash collateralized or reallocated shall be payable to the contraryIssuing Lender until such LC Exposure is cash collateralized or reallocated.
(c) So long as any Lender is a Defaulting Lender, the NonIssuing Lender shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Lenders’ option to take an assignment as Lenders or cash collateral will be provided by the Company in accordance with Section 2.1(b)(ii)(B) may 2.11(j), and participating interests in any newly issued or increased Letter of Credit shall be exercised by a Nonallocated among non-Defaulting Lender Lenders in its sole a manner consistent with Section 2.14(b)(i) (and absolute discretion Defaulting Lenders shall not participate therein) and nothing contained herein shall obligate any Non-unallocated LC Exposure of the Defaulting Lender shall be cash collateralized. In the event that the Administrative Agent, the Company, and the Issuing Lender each agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to take be a Defaulting Lender, then the LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitments, and on such date the Administrative Agent shall return to the Company any such assignmentcash collateral that has been granted pursuant to this Section.”
Appears in 1 contract
Sources: Credit Agreement (Cox Radio Inc)
Defaulting Lender. At 509265-1725-11432-13209999 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) Facility Fees, if any, shall cease to accrue on the unfunded Commitment of such Defaulting Lender pursuant to Section 2.13;
(b) such Defaulting Lender and the Commitment and Extensions of Credit of such Defaulting Lender shall not be included in determining whether the Lenders, 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, consent, waiver or other modification pursuant to Section 10.1); provided, that this clause (b) shall not apply in the case of an amendment, waiver or other modification that has the effect of (i) increasing the amount or extending the expiration date of all or 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 Swingline Exposure or L/C Obligations exist at the time 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 Defaulting Lender shall be reallocated among the Domestic Lenders that are not Defaulting Lenders in accordance with their Domestic Percentages (calculated without regard to such Defaulting Lender) but only to the extent the sum of all non-Defaulting Lenders' Domestic Extensions of Credit plus outstanding Domestic Competitive Loans plus such Swingline Exposure does not exceed the total of all Domestic Lenders that are not Defaulting Lenders' Domestic Commitments and (y) all or any part of the L/C Obligations of such Defaulting Lender shall be reallocated among the L/C Tranche Lenders that are not Defaulting Lenders in 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 not Defaulting Lenders' L/C Tranche Commitments;
(ii) if any reallocation described in clause (i) above cannot, or can only partially, be effected, the Company or any applicable Subsidiary Borrower shall, at any time when and from time to time following notice by the Administrative 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 L/C Obligations (after giving effect to any partial reallocation pursuant to clause (i) above) for so long as such L/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 or any Subsidiary Borrower Collateralizes any portion of such Defaulting Lender's L/C Obligations pursuant to clause (ii) above, neither the Company nor any relevant Subsidiary Borrower shall be required to pay any fees to such Defaulting Lender pursuant to Section 3.3 with respect to such Defaulting Lender's L/C Obligations during the period and to the extent such Defaulting Lender's L/C Obligations are so Collateralized; 509265-1725-11432-13209999
(iv) if the L/C Obligations or Swingline Exposure of the Defaulting Lenders are reallocated pursuant to clause (i) above, then the fees payable to the non-Defaulting Lenders pursuant to Section 2.13 and Section 3.3, as applicable, shall be adjusted in accordance with such non-Defaulting Lenders' 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; and
(v) if all or any portion of such Defaulting Lender's L/C Obligations is neither reallocated nor Collateralized pursuant to 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 fees payable pursuant to the L/C Fee Letter with respect to such Defaulting Lender's L/C Obligations shall be payable to the applicable Issuing Lender until and to the extent that such L/C Obligations are so reallocated and/or Collateralized; and
(d) no Issuing Lender shall be required to issue, renew, amend or increase any Letter of Credit, and no Swingline Lender shall be required to fund any Swingline Loan, unless 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 L/C Tranche Commitments or Domestic Commitments, as applicable, of the L/C Tranche Lenders and/or Domestic Lenders, as applicable, that are not Defaulting Lenders and/or Collateralized by the Company or any applicable Subsidiary Borrower in accordance with this Section 2.28 and participating interests in any newly made Swingline Loan or any newly issued or increased Letter of Credit shall be allocated among the Domestic Lenders or L/C Tranche Lenders, as applicable, that are not Defaulting Lenders in a manner consistent with this Section 2.28 (and such Defaulting Lender shall not participate therein). If (i) a Lender is then Insolvency Event with respect to the parent company of any L/C Tranche Lender shall occur following the Closing Date and for so long as such event shall continue or (ii) any 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, no Issuing Lender shall be required to issue, amend or increase any Letter of Credit unless such Issuing Lender shall have entered into arrangements with the Company or such L/C Tranche Lender, satisfactory to such Issuing Lender, to defease any risk to 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 Domestic Lender commits to extend credit, no Swingline Lender shall be required to fund any Swingline Loan unless such Swingline Lender shall have entered into arrangements with the Company or such Domestic Lender, satisfactory to such Swingline Lender, to defease any risk to it in respect of such Domestic Lender hereunder. In the event that a Domestic Lender becomes a Defaulting Lender, the Borrower, at the Borrower’s election, may elect to terminate such Defaulting Lender’s Commitment hereunder; provided that (A) such termination must be of the Defaulting Lender’s entire Commitment, (B) the Non-Defaulting Lenders Administrative Agent 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 pursuant to this Section 2.1(b)(ii), (C) give notice to the extent Company and each affected Swingline Lender stating 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 Domestic 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 2.17(a)(iii)), and letter of credit fees (subject to Section 2.17(a)(iii)) but specifically excluding any amounts owing under Section 2.11 as result of such payment of such Advances) and shall deposit with 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 2.17), (D) become a Defaulting Lender’s Commitment may be terminated by . In the 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 event that each 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 Commitment shall be deemed terminated, and (3) such Defaulting Lender shall be relieved of its obligations hereunder as a “Revolving Lender” except as to its obligations under Section 8.4(b) and Section 9.1 shall continue with respect to events and occurrences occurring before or concurrently with its ceasing to be a “Revolving Lender” 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 Company, each relevant Subsidiary Borrower and each affected Swingline Lender agrees that such Defaulting Lender has adequately remedied all matters that caused such Defaulting Lender to be a Defaulting Lender, then the Swingline Exposure of the Domestic Lenders shall be readjusted to reflect the inclusion of such Defaulting Lender's Domestic Commitments and, on such date, such 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 Domestic Lender to hold such Domestic Loans and participations in the Swingline Exposure in accordance with its Domestic 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 or any stating that such L/C Tranche Lender may have against has become a Defaulting Lender. In the event that each of the Administrative Agent, the Company, each relevant 509265-1725-11432-13209999 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. Notwithstanding anything herein to 's L/C Tranche Commitments and, on such date, such L/C Tranche Lender shall purchase at par such of the contrary, Loans and/or participations in the Non-Defaulting Lenders’ option to take an assignment L/C Obligations of the other L/C Tranche Lenders as provided in Section 2.1(b)(ii)(B) the Administrative Agent shall determine may be exercised by a Non-Defaulting Lender necessary in its sole and absolute discretion and nothing contained herein shall obligate any Non-Defaulting order for such L/C Tranche Lender to take any hold such assignmentL/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
Sources: Revolving Credit Agreement (General Motors Financial Company, Inc.)