Defaulting Lenders. 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 Commitment of such Defaulting Lender pursuant to Section 4.1(a); (b) the Commitment of and the Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders or any other requisite Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 13.1); provided that (i) 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 (ii) the Commitment of any Defaulting Lender may not be increased or extended without the consent of such Lender; (c) if any Swingline Exposure or Letter of Credit Exposure exists at the time a Lender becomes a Defaulting Lender, then (i) all or any part of such Letter of Credit Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the proviso below, automatically be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Non-Defaulting Lenders pro rata in accordance with their respective Revolving Credit Commitment Percentage; provided that (A) each Non-Defaulting Lender’s Revolving Credit Exposure may not in any event exceed the Revolving Credit Commitment of such Non-Defaulting Lender as in effect at the time of such reallocation and (B) subject to Section 13.21, neither such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Letter of Credit Issuer, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, (ii) to the extent that all or any portion (the “unreallocated portion”) of the Defaulting Lender’s Letter of Credit Exposure and Swingline Exposure cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(c)(i) above or otherwise, the Borrower shall within two Business Days following notice by the Administrative Agent (x) first, prepay such Swingline Exposure (after giving pro forma 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 pro forma effect to any partial reallocation pursuant to clause (i) above), in accordance with the procedures set forth in Section 3.8 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 the requirements of this Section 2.16(c), the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c) with respect to such Defaulting Lender’s 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 the requirements of this Section 2.16(c), then the fees payable to the Lenders pursuant to Section 4.1(c) shall be adjusted in accordance with such Non-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to such Defaulting Lender’s Letter of Credit Exposure during the period that such Defaulting Lender’s Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Letter of Credit Exposure is neither Cash Collateralized nor reallocated pursuant to the requirements of this Section 2.16(c), then, without prejudice to any rights or remedies of the Letter of Credit Issuer or any Lender hereunder, all fees payable under Section 4.1(c) with respect to 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; (d) (i) the Letter of Credit Issuer will not be required to issue any new Letter of Credit or amend any outstanding Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the Letter of Credit Issuer is reasonably satisfied that any exposure that would result from the exposure to such Defaulting Lender is eliminated or fully covered by the Revolving Credit Commitments of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof in accordance with the requirements of Section 2.16(c) above or otherwise in a manner reasonably satisfactory to the Letter of Credit Issuer; and
Appears in 5 contracts
Sources: Credit Agreement (Snap One Holdings Corp.), Incremental Agreement (Snap One Holdings Corp.), Credit Agreement (MultiPlan Corp)
Defaulting Lenders. 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 2.11.1 Facility Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a2.4.1 (except to the extent allocable to (i) the outstanding principal amount of the Revolving Loans funded by it and (ii) its outstanding Swingline Exposure and/or LC Exposure for which such Defaulting Lender has provided Cash Collateral to the relevant Swingline Lender or LC Issuing Bank hereunder);
(b) 2.11.2 the Commitment of and the Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders or any other requisite Lenders have taken or may take any action hereunder (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 13.17.9); provided , except that (i) the Commitment(s) of any waiverDefaulting Lender may not be increased or extended, amendment or modification the maturity of any of its Loans may not be extended, the rate of interest on any of its Loans may not be reduced and the principal amount of any of its Loans may not be forgiven, in each case without the consent of such Defaulting Lender and (ii) any amendment, waiver or consent requiring the consent of all the Lenders or each affected Lender which that by its terms affects such any Defaulting Lender differently more adversely than the other affected Lenders shall require the consent of such Defaulting Lender and (ii) the Commitment of any Defaulting Lender may not be increased or extended without the consent of such Lender;
(c) 2.11.3 if any Swingline Exposure or Letter of Credit LC Exposure exists at the time a such Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Letter of Credit the Swingline Exposure and LC Exposure of such Defaulting Lender and shall be reallocated among the non-Defaulting Lenders in accordance with their respective Proportionate Shares but only to the extent 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; provided that each such Defaulting Lender willreallocation shall be given effect only if, subject to at the limitation in date the proviso below, automatically be reallocated (effective on the day such applicable Lender becomes a Defaulting Lender) among the Non-Defaulting Lenders pro rata in accordance with their respective Revolving Credit Commitment Percentage; provided that (A) each Non-Defaulting Lender’s Revolving Credit Exposure may not in any event exceed the Revolving Credit Commitment , no Inchoate Default or Event of such Non-Defaulting Lender as in effect at the time of such reallocation and (B) subject to Section 13.21, neither such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Letter of Credit Issuer, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, Default exists;
(ii) to if the extent that all or any portion reallocation described in clause (the “unreallocated portion”i) of the Defaulting Lender’s Letter of Credit Exposure and Swingline Exposure above cannot, or can only partially, be so reallocated to Non-Defaulting Lenderseffected, whether by reason of the first proviso in Section 2.16(c)(i) above or otherwise, the Borrower shall within two Business Days one Banking Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, Cash Collateralize for the benefit of the LC Issuing Banks only Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure (after giving pro forma 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 pro forma effect to any partial reallocation pursuant to clause (i) above), in accordance with the procedures set forth in Section 3.8 2.2.10 for so long as such Letter of Credit LC Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes any portion of such Defaulting Lender’s Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(c)clause (ii) above, the Borrower shall not be required to pay any Letter of Credit fees to such Defaulting Lender pursuant to Section 4.1(c) 2.4.2 with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Letter of Credit LC Exposure is Cash Collateralized, ;
(iv) if the Letter of Credit LC Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(c)clause (i) above, then the Letter of Credit fees payable to the Lenders pursuant to Section 4.1(c) 2.4.2 shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay Proportionate Shares; and
(v) if all or any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to portion of such Defaulting Lender’s Letter of Credit Exposure during the period that such Defaulting Lender’s Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Letter of Credit LC Exposure is neither reallocated nor Cash Collateralized nor reallocated pursuant to the requirements of this Section 2.16(c)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the Letter of Credit Issuer any LC Issuing Bank or any Lender hereunder, all Facility Fees that otherwise would have been payable to such Defaulting Lender pursuant to Section 2.4.1 (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 4.1(c) 2.4.2 with respect to such Defaulting Lender’s Letter of Credit LC Exposure shall be payable to the relevant LC Issuing Bank until and to the extent that such LC Exposure is reallocated and/or Cash Collateralized; and
2.11.4 so long as such Lender is a Defaulting Lender, no Swingline Lender shall be required to fund any Swingline Loan and no LC Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless such Swingline Lender or LC Issuing Bank, as the case may be, is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or Cash Collateral will be provided by Borrower in accordance with Section 2.2.10, and participating interests in any newly made Swingline Loan or any newly issued or increased Letter of Credit Issuer until shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.2.7 (and such Letter of Credit Exposure Defaulting Lender shall not participate therein). If (i) a bankruptcy event (as such term is Cash Collateralized and/or reallocated;
defined in clause (d) of the definition of “Defaulting Lender”) with respect to any Person as to which any Lender is, directly or indirectly, a Subsidiary shall occur following the date hereof and for so long as such event shall continue or (iii) the Letter of Credit Issuer will not any Swingline Lender or any LC 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, no Swingline Lender shall be required to issue fund any new Swingline Loan and no LC Issuing Bank shall be required to issue, amend or increase any Letter of Credit or amend any outstanding Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereofCredit, unless Borrower shall have Cash Collateralized such Lender’s Swingline Exposure or LC Exposure, as the Letter of Credit Issuer is reasonably satisfied that any exposure that would result from case may be, pursuant to Section 2.11.3 or otherwise such Swingline Lender or such LC Issuing Bank, as the exposure case may be, shall have entered into arrangements with Borrower or such Lender, satisfactory to such Swingline Lender or such LC 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, Borrower, the Swingline Lenders and the LC Issuing Banks each agrees that a Defaulting Lender is eliminated or fully covered by has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Revolving Credit Commitments Swingline Exposure and LC Exposure of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof 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 Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with the requirements of Section 2.16(c) above or otherwise in a manner reasonably satisfactory to the Letter of Credit Issuer; andits Proportionate Share.
Appears in 5 contracts
Sources: Credit Agreement (Tampa Electric Co), Credit Agreement (Tampa Electric Co), Credit Agreement (Tampa Electric Co)
Defaulting Lenders. 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 Fees shall cease to accrue on the unfunded portion of the Available Revolving Commitment of such Defaulting Lender pursuant to Section 4.1(a2.09(a);.
(b) the Commitment of The Commitments, Loans and the Outstanding Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders or any other requisite Required Revolving Lenders have taken or may take any action hereunder (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 13.19.02 or Section 9.03); provided that this Section 2.18(b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification effecting (i) any waiver, amendment an increase 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 extension of such Defaulting Lender and Lender’s Revolving Commitment or (ii) the Commitment reduction or excuse of any principal amount of, or interest or fees payable on, such Defaulting Lender may not be increased Lender’s Loans or extended without the consent postponement of the scheduled date of payment of such principal amount, interest or fees to such Defaulting Lender;.
(c) if If any Swingline Exposure or Letter Letters of Credit Exposure exists or Swing Line Loans exist at the time a Lender becomes a Defaulting Lender, then (i) all or any part of such Letter of Credit Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the proviso below, automatically be reallocated (effective on the day such Lender becomes a Defaulting Lender then:
(i) Such Defaulting Lender) ’s LC Exposure and Swing Line Exposure shall be reallocated among the Non-Defaulting Revolving Lenders pro rata in accordance with their respective Revolving Credit Commitment Percentage; provided that Percentages (Abut excluding the Revolving Commitments of all the Defaulting Lenders from both the numerator and the denominator) each but only to the extent (w) the sum of all the Outstanding Revolving Credits owed to all Non-Defaulting Lenders does not exceed the total of all Non-Defaulting Lenders’ Available Revolving Commitments, (x) such reallocation does not cause the aggregate Outstanding Revolving Credits of any Non-Defaulting Lender to exceed such Non-Defaulting Lender’s Revolving Credit Exposure may not in any event exceed the Revolving Credit Commitment of such Non-Defaulting Lender as in effect at the time of such reallocation and (B) subject to Section 13.21, neither such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Letter of Credit Issuer, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting LenderCommitment, (iiy) the representations and warranties of each Loan Party set forth in the Loan Documents to which it is a party are true and correct at such time, except to the extent that all or any portion such representation and warranty relates to an earlier date (in which case such representation and warranty shall be true and correct as of such earlier date), and (z) no Default shall have occurred and be continuing at such time;
(ii) If the “unreallocated portion”reallocation described in clause (i) of the Defaulting Lender’s Letter of Credit Exposure and Swingline Exposure above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(c)(i) above or otherwiseeffected, the Borrower shall shall, within two Business Days following notice by the Administrative Agent Agent, (x) first, prepay Swing Line Loans in an amount equal to the Swing Line Lenders’ Fronting Exposure and (y) second, cash collateralize for the benefit of the Issuing Bank such Swingline Defaulting Lender’s LC Exposure (after giving pro forma 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 pro forma effect to any partial reallocation pursuant to clause (i) above), in accordance with the procedures set forth in Section 3.8 for so long as such Letter any Letters of Credit Exposure is are outstanding, ;
(iii) if If the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(c)clause (ii) above, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c2.09(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Letter of Credit LC Exposure is Cash Collateralized, cash collateralized by the Borrower;
(iv) if the Letter of Credit Exposure If LC Exposures of the Non-Defaulting Lenders is are reallocated pursuant to the requirements of this Section 2.16(c)clause (i) above, then the fees payable to the Revolving Lenders pursuant to Section 4.1(c2.09(a) and Section 2.09(b) shall be adjusted in accordance with to reflect such Non-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period that such Defaulting Lender’s Letter of Credit Exposure is as reallocated, or ; and
(v) if If any Defaulting Lender’s Letter of Credit LC Exposure is neither Cash Collateralized cash collateralized nor reallocated pursuant to the requirements of this Section 2.16(c)clauses (i) or (ii) above, then, without prejudice to any rights or remedies of the Letter of Credit Issuer Issuing Bank or any Revolving Lender hereunder, all letter of credit fees payable under Section 4.1(c2.09(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure shall be payable to the Letter of Credit Issuer Issuing Bank until such Letter of Credit LC Exposure is Cash Collateralized cash collateralized and/or reallocated;.
(d) (i) the Letter of Credit Issuer will not be required to issue any new Letter of Credit or amend any outstanding Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the Letter of Credit Issuer is reasonably satisfied that any exposure that would result from the exposure to So long as such Defaulting Lender is eliminated a Defaulting Lender, no Issuing Bank shall be required to issue, amend or fully increase any Letter of Credit, unless it is satisfied that the related LC Exposure will be 100% covered by the Available Revolving Credit Commitments of the Non-Defaulting Lenders or and/or cash collateral will be provided by Cash Collateralization or a combination thereof the Borrower in accordance with Section 2.18(c)(ii), and the requirements participating interests in any such newly issued or increased Letter of Section 2.16(c) above or otherwise Credit shall be allocated among Non-Defaulting Lenders in a manner reasonably satisfactory consistent with Section 2.18(c)(i) (and such Defaulting Lender shall not participate therein). The rights and remedies against a Defaulting Lender under this Agreement are in addition to other rights and remedies that Borrower may have against such Defaulting Lender with respect to any funding default and that the Administrative Agent or any Lender may have against such Defaulting Lender with respect to any funding default. In the event that the Administrative Agent, the Borrower, the Swing Line 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 Total Revolving Exposure shall be readjusted to reflect the inclusion of such Lender’s Available Revolving Commitment and on such date such Lender shall purchase at par such of the Revolving Loans of the other Lenders or take such other actions as the Administrative Agent may determine to be necessary to cause such outstanding Revolving Loans and funded and unfunded participations in Letters of Credit to be held on a pro rata basis by the Revolving Lenders (including such Lender) in accordance with their applicable percentages, whereupon such Lender will cease to be a Defaulting Lender and will be a Non-Defaulting Lender and any applicable cash collateral shall be promptly returned to the Letter Borrower and any LC Exposure of Credit Issuersuch Lender reallocated pursuant to the requirements above shall be reallocated back to such Lender; andprovided 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; provided that, except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Non-Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from such Lender’s having been a Defaulting Lender.
Appears in 5 contracts
Sources: Credit Agreement (Donnelley Financial Solutions, Inc.), Credit Agreement (LSC Communications, Inc.), Credit Agreement (Donnelley Financial Solutions, Inc.)
Defaulting Lenders. 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 pursuant to Section 2.5(a) and (b) on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a)solely in respect of its unused Commitments;
(b) the Commitment of Commitments and the Revolving Credit Exposure Aggregate Outstandings of such Defaulting Lender shall not be included in determining whether all Lenders, all affected Lenders or the Required Lenders or any other requisite Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 13.18.2); , provided that (i) 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 (other than as a result of such Defaulting Lender having a greater or lesser Aggregate Outstandings or Commitments) or which increases the amount of any Commitment of such Defaulting Lender, forgives any principal amount of any Loans owing to such Defaulting Lender or any interest (other than default interest) or fees owing to such Defaulting Lender previously accrued at the time of such forgiveness or extends the termination date of such Commitment or extends the final maturity beyond the then maturity date of any Loan, Note or Reimbursement Obligation with respect to such Defaulting Lender shall require the consent of such Defaulting Lender and (ii) the Commitment of any Defaulting Lender may not be increased or extended without the consent of such Lender;
(c) if any Swingline Exposure Swing Loans or Facility Letter of Credit Exposure exists Obligations exist at the time a Revolving Credit Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Defaulting Lender’s Pro Rata Share of such Swing Loans and Facility Letter of Credit Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the proviso below, automatically Obligations shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata having a Revolving Credit Commitment in accordance with their respective Pro Rata Shares but only to the extent the sum of all non-Defaulting Lenders’ Aggregate Revolving Credit Commitment Percentage; provided that (A) each Non-Outstandings plus such Defaulting Lender’s Revolving Credit Exposure may not in any event exceed the Revolving Credit Commitment Pro Rata Share of such Non-Defaulting Lender as in effect at the time of such reallocation Swing Loans and (B) subject to Section 13.21, neither such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Facility Letter of Credit Issuer, Obligations does not exceed the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Nontotal of all non-Defaulting Lender, Lenders’ Revolving Credit Commitments;
(ii) to the extent that all or any portion extent, if any, the reallocation described in clause (the “unreallocated portion”i) of the Defaulting Lender’s Letter of Credit Exposure and Swingline Exposure above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(c)(i) above or otherwiseeffected, the Borrower Borrowers shall within two three Business Days following notice by the Administrative Agent (x) first, prepay such Swingline Exposure Swing Loans and (y) second, cash collateralize such Defaulting Lender’s Pro Rata Share of such Facility Letter of Credit Obligations (in each case after giving pro forma 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 pro forma effect to any partial reallocation pursuant to clause (i) above), in accordance with the procedures set forth in Section 3.8 8.1 for so long as such Facility Letter of Credit Exposure is outstandingObligations are outstanding and such Defaulting Lender remains a Defaulting Lender, provided that no Foreign Subsidiary Borrower shall be obligated to make any such payment in excess of, respectively, the principal amount of any outstanding Swing Loans made to it or the amount of any Facility Letter of Credit Obligations in respect of Facility Letters of Credit issued for its account;
(iii) if the Borrower Cash Collateralizes Borrowers cash collateralize any portion of such Defaulting Lender’s Pro Rata Share of Facility Letter of Credit Exposure Obligations pursuant to the requirements of this Section 2.16(c)8.1, the no Borrower shall not be required to pay any fees to such Defaulting Lender (or to the Administrative Agent or Issuer for the benefit thereof) pursuant to Section 4.1(c) 2.15.6 with respect to such Defaulting Lender’s Pro Rata Share of Facility Letter of Credit Exposure Obligations during the period such Defaulting Lender’s Pro Rata Share of Facility Letter of Credit Exposure Obligations is Cash Collateralized, cash collateralized;
(iv) if the Pro Rata Share of Facility Letter of Credit Exposure Obligations of the Nonnon-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(c2.17(c), then the fees payable to the Lenders pursuant to Section 4.1(c) 2.5 and Section 2.15.6 shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to such Defaulting Lender’s Letter of Credit Exposure during the period that such Defaulting Lender’s Letter of Credit Exposure is reallocated, or Pro Rata Shares; and
(v) if any Defaulting Lender’s Pro Rata Share of Facility Letter of Credit Exposure Obligations is neither Cash Collateralized cash collateralized nor reallocated pursuant to the requirements of this Section 2.16(c2.17(c), then, without prejudice to any rights or remedies of the Letter of Credit Issuer or any 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 Pro Rata Share of Facility Letter of Credit Obligations) and letter of credit fees payable under Section 4.1(c) 2.15.6 with respect to such Defaulting Lender’s Pro Rata Share of Facility Letter of Credit Exposure Obligations shall be payable to the Issuer until such Pro Rata Share of Facility Letter of Credit Issuer until such Letter of Credit Exposure Obligations is Cash Collateralized cash collateralized and/or reallocated;
(d) (i) so long as any Revolving Credit Lender is a Defaulting Lender, the Letter of Credit Issuer will Swing Lender shall not be required to issue fund any new Swing Loan and the Issuer shall not be required to issue, amend or increase any Facility Letter of Credit or amend any outstanding Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereofCredit, unless the Letter of Credit Issuer it is reasonably satisfied that any the related exposure that would result from the exposure to such Defaulting Lender is eliminated or fully will be 100% covered by the Revolving Credit Commitments of the Nonnon-Defaulting Lenders or and/or cash collateral will be provided by Cash Collateralization or a combination thereof the Borrowers in accordance with the requirements this Section 2.17 and Section 8.1, and participating interests in any such newly issued or increased Facility Letter of Section 2.16(c) above Credit or otherwise newly made Swing Loan shall be allocated among non-Defaulting Lenders in a manner reasonably satisfactory consistent with Section 2.17(c)(i) (and Defaulting Lenders shall not participate therein); and
(e) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.17 but excluding Section 3.5) shall, in lieu of being distributed to such Defaulting Lender, be retained by the Administrative Agent in a segregated account and, subject to any applicable Requirements Of Law, be applied at such time or times as may be determined by the Administrative Agent (i) first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to the Issuer or Swing Lender hereunder, (iii) third, to the funding of any Loan or the funding or cash collateralization of any participating interest in any Swing Loan or Facility Letter of Credit Issuerin 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 Borrowers, held in such account as cash collateral for future funding obligations of the 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 breach of its obligations under this Agreement and (vi) sixth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; andprovided that if such payment is (x) a prepayment of the principal amount of any Loans or reimbursement obligations in respect of Reimbursement Obligations for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 4.4 are satisfied, such payment shall be applied solely to prepay the Loans of, and Reimbursement Obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or Reimbursement Obligations owed to, any Defaulting Lender. In the event that the Administrative Agent, the Borrowers, the Issuer and the Swing Lender each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, such Lender shall cease to be a Defaulting Lender and the Pro Rata Shares of Swing Loans and Facility Letter of Credit Obligations 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 Swing 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 any 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.
Appears in 5 contracts
Sources: Credit Agreement (DIEBOLD NIXDORF, Inc), Credit Agreement (DIEBOLD NIXDORF, Inc), Credit Agreement (Diebold Inc)
Defaulting Lenders. 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, to the extent permitted by applicable law:
(ai) fees shall cease to accrue on the unfunded portion of the Revolving Commitment of such a Defaulting Lender, and (ii) no Defaulting Lender shall be entitled to receive any Revolving Commitment fees pursuant to Section 4.1(a2.09(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);
(b) the Commitment of and the Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders or any other requisite Lenders have taken or may take any action hereunder (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 13.111.02); provided that this clause (ib) any waivershall not apply to the vote of a Defaulting Lender in the case of an amendment, amendment waiver or other modification requiring the consent of all Lenders each Lender or each Lender affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lender and (ii) the Commitment of any Defaulting Lender may not be increased or extended without the consent of such Lenderthereby;
(c) if any Swingline Exposure or Letter of Credit Exposure Usage exists at the time a such Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such the Letter of Credit Exposure Usage of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Non-Defaulting Lenders pro rata in accordance with their respective Revolving Credit Commitment Percentage; provided Applicable Percentages but only to the extent that (Ax) each the sum of all Non-Defaulting Lenders’ Revolving Exposures plus such Defaulting Lender’s Letter of Credit Usage does not exceed the total of all Non-Defaulting Lenders’ Revolving Commitments, and (y) the sum of any Non-Defaulting Lender’s Revolving Exposure plus its Pro Rata Share of such Defaulting Lender’s Letter of Credit Exposure may Usage does not in any event exceed the Revolving Credit Commitment of such Non-Defaulting Lender as in effect at the time of such Lender’s Revolving Commitment; provided that no reallocation and (B) subject to Section 13.21, neither such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will hereunder shall constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Letter of Credit Issuer, the Swingline Lender or any other Lender may have party hereunder against such a Defaulting Lender or cause such arising from that Lender having become a Defaulting Lender to be Lender, including any claim of a Non-Defaulting Lender as a result of such Non-Defaulting Lender, ’s increased exposure following such reallocation;
(ii) to if the extent that all or any portion reallocation described in clause (the “unreallocated portion”i) of the Defaulting Lender’s Letter of Credit Exposure and Swingline Exposure above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(c)(i) above or otherwiseeffected, the Borrower shall shall, without prejudice to any right or remedy available to it hereunder or under law, within two one Business Days Day following notice by Administrative Agent, Cash Collateralize for the Administrative Agent (x) first, prepay benefit of each applicable Issuing Bank only the Borrower’s obligations corresponding to such Swingline Exposure Defaulting Lender’s Letter of Credit Usage (after giving pro forma 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 pro forma effect to any partial reallocation pursuant to clause (i) above), in accordance with the procedures set forth in Section 3.8 2.03(i) for so long as such Letter of Credit Exposure Usage is outstanding, ;
(iii) if the Borrower Cash Collateralizes any portion of such Defaulting Lender’s Letter of Credit Exposure Usage pursuant to the requirements of this Section 2.16(c)clause (i) above, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c2.09(a)(ii) with respect to such Defaulting Lender’s Letter of Credit Exposure Usage during the period such Defaulting Lender’s Letter of Credit Exposure Usage is Cash Collateralized, ;
(iv) if the all or any portion of such Defaulting Lender’s Letter of Credit Exposure of the Non-Defaulting Lenders Usage is reallocated pursuant to the requirements of this Section 2.16(c)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(c2.09(a)(i) and Section 2.09(a)(ii) shall be adjusted in accordance with such Non-Defaulting Lenders’ Revolving Applicable Percentages; and
(v) if all or any portion of such Defaulting Lender’s Letter of Credit Commitment Percentages and the Borrower shall not be required to pay any fees to the Defaulting Lender Usage is neither reallocated nor Cash Collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all letter of credit fees payable under Section 4.1(c2.09(a)(ii) with respect to such Defaulting Lender’s Letter of Credit Exposure during the period Usage that such Defaulting Lender’s Letter of Credit Exposure is reallocated, not so reallocated or (v) if any Defaulting Lender’s Letter of Credit Exposure is neither Cash Collateralized nor reallocated pursuant to the requirements of this Section 2.16(c), then, without prejudice to any rights or remedies of the Letter of Credit Issuer or any Lender hereunder, all fees payable under Section 4.1(c) with respect to such Defaulting Lender’s Letter of Credit Exposure shall be payable to the Letter of Credit Issuer applicable Issuing Bank until and to the extent that such Letter of Credit Exposure Usage is reallocated and/or Cash Collateralized and/or reallocated;Collateralized; and
(d) (i) the Letter of Credit Issuer will not so long as such Lender is a Defaulting Lender, no Issuing Bank shall be required to issue issue, amend or increase any new Letter of Credit or amend any Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the Letter of Credit Issuer is reasonably satisfied that any exposure that would result from the exposure to such Defaulting Lender is eliminated or fully Usage will be 100% covered by the Revolving Credit Commitments of the Non-Defaulting Lenders or and/or Cash Collateral will be provided by Cash Collateralization or a combination thereof the Borrower in accordance with the requirements Section 2.22(c)(ii), and participating interests in any newly issued or increased Letter of Section 2.16(c) above or otherwise Credit shall be allocated among Non-Defaulting Lenders in a manner consistent with Section 2.22(c)(i) (and such Defaulting Lender shall not participate therein).
(i) a Bankruptcy Event with respect to a holding company of any Lender shall occur following the date hereof and for so long as such event shall continue or (ii) an 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, the applicable Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless such Issuing Bank shall have entered into arrangements with the Borrower or such Lender, reasonably satisfactory to such Issuing Bank to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the Borrower and each of 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 Letter of Credit Issuer; andUsage 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 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 Applicable Percentage.
Appears in 4 contracts
Sources: Revolving Credit and Guaranty Agreement (Blue Apron Holdings, Inc.), Revolving Credit and Guaranty Agreement (Blue Apron Holdings, Inc.), Revolving Credit and Guaranty Agreement (Blue Apron Holdings, Inc.)
Defaulting Lenders. (a) Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:Lender (it being understood that the determination of whether a Lender is no longer a Defaulting Lender shall be made as described in Section 2.17(b)):
(ai) fees shall cease to accrue on the unfunded portion fullest extent permitted by applicable law, such Lender will not be entitled to vote in respect of amendments and waivers hereunder, and the Commitment and the outstanding Advances of such Lender hereunder will not be taken into account in determining whether the Required Lenders or all of the Lenders, as required, have approved any such amendment or waiver (and the definition of “Required Lenders” will automatically be deemed modified accordingly for the duration of such period); provided that any such amendment or waiver that would increase or extend the term of the Commitment of such Defaulting Lender pursuant Lender, extend the date fixed for the payment of principal or interest owing to Section 4.1(a);
(b) the Commitment of and the Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders hereunder, reduce the principal amount of any obligation owing to such Defaulting Lender, reduce the amount of or the Required Lenders rate or amount of interest on any other requisite Lenders have taken or may take any action hereunder (including any consent amount owing to any amendment or waiver pursuant to Section 13.1); provided that (i) 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 or of any fee payable to such Defaulting Lender hereunder, or alter the terms of this proviso, will require the consent of such Defaulting Lender and Lender; and
(ii) the Commitment of any Borrower may, at its sole expense and effort, require such Defaulting Lender may not be increased or extended without the consent of such Lender;to assign and delegate its interests, rights and obligations under this Agreement pursuant to Section 8.07.
(cb) if any Swingline Exposure or Letter of Credit Exposure exists at If the time Borrower and the Administrative Agent agree in writing in their discretion that a Lender becomes is no longer a Defaulting Lender, then (i) all or the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any part of conditions set forth therein, such Letter of Credit Exposure of such Lender will cease to be a Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the proviso below, automatically will be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Non-Defaulting Lenders pro rata in accordance with their respective Revolving Credit Commitment Percentage; provided that (A) each Non-Defaulting Lender’s Revolving Credit Exposure may not in any event exceed ; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Revolving Credit Commitment of Borrower while such 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 Non-Defaulting Lender as in effect at the time of such reallocation and (B) subject to Section 13.21, neither such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim of any party hereunder arising from such Lender’s having been a Defaulting Lender.
(c) Any payment of principal, interest, fees or other amounts received by the BorrowerAdministrative Agent hereunder for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Section 6.01 or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 8.05 shall be applied at such time or times as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second as the Borrower may request (so long as no Default or Event of Default exists), to the funding of any Advance in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as reasonably determined by the Administrative Agent; third, as the Letter Borrower may request, to be held in a deposit account and released pro rata in order to satisfy such Defaulting Lender’s potential future funding obligations with respect to Advances under this Agreement; fourth, to the payment of Credit Issuer, any amounts owing to the Swingline Lenders as a result of any judgment of a court of competent jurisdiction obtained by any Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be as a Non-Defaulting Lender, (ii) to the extent that all or any portion (the “unreallocated portion”) of the Defaulting Lender’s Letter of Credit Exposure and Swingline Exposure cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(c)(i) above or otherwise, the Borrower shall within two Business Days following notice by the Administrative Agent (x) first, prepay such Swingline Exposure (after giving pro forma 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 pro forma effect to any partial reallocation pursuant to clause (i) above), in accordance with the procedures set forth in Section 3.8 for so long as such Letter of Credit Exposure is outstanding, (iii) if the Borrower Cash Collateralizes any portion result of such Defaulting Lender’s Letter breach of Credit Exposure pursuant its obligations under this Agreement; fifth, to the requirements payment of this Section 2.16(c), any amounts owing to the Borrower shall not be required to pay as a result of any fees 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 sixth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction. 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 otherwise pursuant to this Section 4.1(c2.17(c) with respect shall be deemed paid to and redirected by such Defaulting Lender’s 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 the requirements of this Section 2.16(c), then the fees payable to the Lenders pursuant to Section 4.1(c) shall be adjusted in accordance with such Non-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay any fees to the Defaulting each Lender pursuant to Section 4.1(c) with respect to such Defaulting Lender’s Letter of Credit Exposure during the period that such Defaulting Lender’s Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Letter of Credit Exposure is neither Cash Collateralized nor reallocated pursuant to the requirements of this Section 2.16(c), then, without prejudice to any rights or remedies of the Letter of Credit Issuer or any Lender hereunder, all fees payable under Section 4.1(c) with respect to 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;
(d) (i) the Letter of Credit Issuer will not be required to issue any new Letter of Credit or amend any outstanding Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the Letter of Credit Issuer is reasonably satisfied that any exposure that would result from the exposure to such Defaulting Lender is eliminated or fully covered by the Revolving Credit Commitments of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof in accordance with the requirements of Section 2.16(c) above or otherwise in a manner reasonably satisfactory to the Letter of Credit Issuer; andirrevocably consents hereto.
Appears in 4 contracts
Sources: 364 Day Term Loan Credit Agreement (AbbVie Inc.), 364 Day Term Loan Credit Agreement (AbbVie Inc.), Three Year Term Loan Credit Agreement (AbbVie Inc.)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting LenderLender hereunder, 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 Commitment of such Defaulting Lender pursuant to Section 4.1(a2.8(a);
(b) the Commitment of Commitments and the Total Revolving Extensions of Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders or any other requisite Lenders have taken or may take any action hereunder (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 13.111.1); provided that this clause (ib) any waivershall not apply to the vote of a Defaulting Lender in the case of an amendment, amendment waiver or other modification requiring the consent of all Lenders each Lender or each Lender affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lender and (ii) the Commitment of any Defaulting Lender may not be increased or extended without the consent of such Lenderthereby;
(c) if any Swingline Exposure Loan or Letter of Credit Exposure exists is outstanding at the time a such Lender becomes a Defaulting Lender, then Lender then:
(i) unless a Default shall have occurred and be continuing, all or any part of such Letter of Credit Exposure the Swingline Participation Amount and LC Obligations of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata in accordance with their respective Alternative Currency Revolving Percentages but only to the extent the sum of all non-Defaulting Lenders’ Alternative Currency Revolving Extensions of Credit Commitment Percentage; provided that (A) each Non-plus such Defaulting Lender’s Revolving Credit Exposure may Swingline Participation Amount and LC Obligations do not in any event exceed the Revolving Credit Commitment total of such Nonall non-Defaulting Lender as in effect at the time of such reallocation and (B) subject to Section 13.21, neither such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Letter of Credit Issuer, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, Lenders’ Alternative Currency Revolving Commitments;
(ii) to if the extent that all or any portion reallocation described in clause (the “unreallocated portion”i) of the Defaulting Lender’s Letter of Credit Exposure and Swingline Exposure above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(c)(i) above or otherwiseeffected, the Borrower shall within two one Business Days Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure Participation Amount and (y) second, cash collateralize for the benefit of the Issuing Lender only the Borrower’s obligations corresponding to such Defaulting Lender’s LC Obligations (after giving pro forma 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 pro forma effect to any partial reallocation pursuant to clause (i) above), in accordance with the procedures set forth in Section 3.8 3.10 for so long as such Letter of Credit Exposure is LC Obligations are outstanding, ;
(iii) if the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s Letter Alternative Currency Revolving Percentage of Credit Exposure the LC Obligations pursuant to the requirements of this Section 2.16(c)clause (ii) above, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c2.8(c) with respect to such Defaulting Lender’s Letter Alternative Currency Revolving Percentage of Credit Exposure the LC Obligations during the period such Defaulting Lender’s Letter of Credit Exposure is Cash Collateralized, LC Obligations are cash collateralized;
(iv) if the Letter of Credit Exposure LC Obligations of the Nonnon-Defaulting Lenders is are reallocated pursuant to the requirements of this Section 2.16(c)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(c2.8(a) and Section 2.8(c) shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Alternative Currency Revolving Credit Commitment Percentages and the Borrower shall not be required to pay Percentages; and
(v) if all or any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to portion of such Defaulting Lender’s Letter of Credit Exposure during the period that such Defaulting Lender’s Letter of Credit Exposure LC Obligations is reallocated, neither reallocated nor cash collateralized pursuant to clause (i) or (vii) if any Defaulting Lender’s Letter of Credit Exposure is neither Cash Collateralized nor reallocated pursuant to the requirements of this Section 2.16(c)above, then, without prejudice to any rights or remedies of the Letter of Credit Issuer Issuing Lender or any other Lender hereunder, all letter of credit fees payable under Section 4.1(c2.8(c) with respect to such Defaulting Lender’s Letter of Credit Exposure LC Obligations shall be payable to the Letter of Credit Issuer Issuing Lender until and to the extent that such Letter of Credit Exposure is Cash Collateralized LC Obligations are reallocated and/or reallocated;cash collateralized; and
(d) (i) so long as such Lender is a Defaulting Lender, the Letter of Credit Issuer will Swingline Lender shall not be required to issue fund any new 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 LC Obligations will be 100% covered by the Alternative Currency Revolving Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 2.26(c), and participating interests in any newly made Swingline Loan or any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Alternative Currency Revolving Lenders in a manner consistent with Section 2.26(c)(i) (and such Defaulting Lender shall 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) the Swingline Lender or the Issuing Lender has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, 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 outstanding Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereofCredit, unless the Letter 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 Credit Issuer is reasonably satisfied such Lender hereunder. In the event that any exposure the Administrative Agent, the Borrower, the Swingline Lender and the Issuing Lender each agrees that would result from the exposure to such a Defaulting Lender is eliminated or fully covered by has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Participation Amount and LC Obligations of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Alternative Currency Revolving Commitment and on such date such Lender shall purchase at par such of the Revolving Credit Commitments Loans of the Non-Defaulting other Lenders or by Cash Collateralization or a combination thereof (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 the requirements of Section 2.16(c) above or otherwise in a manner reasonably satisfactory to the Letter of Credit Issuer; andits Revolving Percentage.
Appears in 4 contracts
Sources: Credit Agreement (Davita Inc), Credit Agreement (Davita Inc), Credit Agreement (Davita Inc)
Defaulting Lenders. 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 Commitment of such Defaulting Lender pursuant to Section 4.1(a);
(b) the Commitment of and the Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders or any other requisite Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 13.1); provided that (i) 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 (ii) the Commitment of any Defaulting Lender may not be increased or extended without the consent of such Lender;
(c) if any Swingline Exposure or Letter of Credit Exposure exists at the time a Lender becomes a Defaulting Lender, then (i) all or any part of such Letter of Credit Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the proviso below, automatically be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Non-Defaulting Lenders pro rata in accordance with their respective Revolving Credit Commitment Percentage; of the applicable Class of Revolving Credit Commitments; provided that (A) each Non-Defaulting Lender’s Revolving Credit Exposure may not in any event exceed the Revolving Credit Commitment of such Non-Defaulting Lender as in effect at the time of such reallocation and (B) subject to Section 13.21, neither such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Letter of Credit IssuerIssuers, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, (ii) to the extent that all or any portion (the “unreallocated portion”) of the Defaulting Lender’s Letter of Credit Exposure and Swingline Exposure cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(c)(i) above or otherwise, the Borrower shall within two Business Days following notice by the Administrative Agent Agent, (x) first, prepay such Swingline Exposure (after giving pro forma 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 pro forma effect to any partial reallocation pursuant to clause (i) above), in accordance with the procedures set forth in Section 3.8 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 the requirements of this Section 2.16(c), the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c) with respect to such Defaulting Lender’s 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 the requirements of this Section 2.16(c), then the fees payable to the Lenders pursuant to Section 4.1(c) shall be adjusted in accordance with such Non-Defaulting Lenders’ Revolving Credit Commitment Percentages of the applicable Class of Revolving Credit Commitments and the Borrower shall not be required to pay any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to such Defaulting Lender’s Letter of Credit Exposure during the period that such Defaulting Lender’s Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Letter of Credit Exposure is neither Cash Collateralized nor reallocated pursuant to the requirements of this Section 2.16(c), then, without prejudice to any rights or remedies of the Letter of Credit Issuer or any Lender hereunder, all fees payable under Section 4.1(c) with respect to 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;
(d) (i) the Letter of Credit Issuer will not be required to issue any new Letter of Credit or amend any outstanding Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the Letter of Credit Issuer is reasonably satisfied that any exposure that would result from the exposure to such Defaulting Lender is eliminated or fully covered by the Revolving Credit Commitments of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof in accordance with the requirements of Section 2.16(c) above or otherwise in a manner reasonably satisfactory to the Letter of Credit Issuer; and
Appears in 4 contracts
Sources: Credit Agreement (Grocery Outlet Holding Corp.), Incremental Agreement (Grocery Outlet Holding Corp.), Incremental Agreement (Grocery Outlet Holding Corp.)
Defaulting Lenders. 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 Commitment Commitments of such Defaulting Lender pursuant to Section 4.1(a2.12(a);
(b) the aggregate principal amount of Loans, Revolving L/C Exposures, Swingline Exposures and Available Unused Commitment of and the Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, Required Lenders, Majority Lenders or the Required Lenders or any other requisite affected Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 13.19.08); provided that (i) 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 Lender, (ii) the Commitment of any such Defaulting Lender may not be increased or extended without the consent of such Defaulting Lender and (iii) any amendment that reduces the principal amount of, or rate of interest on, any Loan made by such Defaulting Lender, shall require the consent of such Defaulting Lender;
(c) if any Swingline Exposure or Letter of Credit Revolving L/C Exposure exists at the time a Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Letter of Credit Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the proviso below, automatically or Revolving L/C Exposure shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata in accordance with their respective Revolving Facility Percentages but only to the extent (x) such reallocation does not cause the aggregate Revolving Facility Credit Commitment Percentage; provided that (A) each NonExposure of any non-Defaulting Lender to exceed such non-Defaulting Lender’s Revolving Credit Exposure may not in any event exceed the Revolving Credit Facility Commitment of such Non-Defaulting Lender as in effect at the time of such reallocation and (By) subject to the conditions set forth in Section 13.21, neither 4.01 are satisfied at such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Letter of Credit Issuer, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, time; and
(ii) to if the extent that all or any portion reallocation described in clause (the “unreallocated portion”i) of the Defaulting Lender’s Letter of Credit Exposure and Swingline Exposure above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(c)(i) above or otherwiseeffected, the Borrower shall within two five Business Days following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize such Defaulting Lender’s Revolving L/C Exposure (after giving pro forma 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 pro forma effect to any partial reallocation pursuant to clause (i) above), in accordance with the procedures set forth in Section 3.8 2.05(j) for so long as such Letter of Credit Revolving L/C Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s Letter of Credit Revolving L/C Exposure pursuant to the requirements of this Section 2.16(c2.22(c)(ii)(y), the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c) 2.12 with respect to such Defaulting Lender’s Letter of Credit Revolving L/C Exposure during the period such Defaulting Lender’s Letter of Credit Revolving L/C Exposure is Cash Collateralized, cash collateralized;
(iv) if the Letter of Credit Swingline Exposure or Revolving L/C Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(c2.22(c)(i), then the fees payable to the Lenders pursuant to Section 4.1(c) 2.12 shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to such Defaulting Lender’s Letter of Credit Exposure during the period that such Defaulting Lender’s Letter of Credit Exposure is reallocated, or Facility Percentage; and
(v) if any Defaulting Lender’s Letter of Credit Revolving L/C Exposure is neither Cash Collateralized cash collateralized nor reallocated pursuant to the requirements of this Section 2.16(c2.22(c)(i) or (ii), then, without prejudice to any rights or remedies of the Letter of Credit Issuer Issuing Bank or any 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 Revolving L/C Commitment that was utilized by such Revolving L/C Exposure) and all Revolving L/C Participation Fees payable under Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Letter of Credit Revolving L/C Exposure shall be payable to the Letter of Credit Issuer applicable Issuing Bank until such Letter of Credit Exposure Revolving L/C exposure is Cash Collateralized and/or cash collateralized and / or reallocated;
(d) (i) the Letter of Credit Issuer will not so long as any Lender is a Defaulting Lender, no Swingline Lender shall be required to issue fund any new Swingline Loan and no Issuing Bank shall be required to issue, amend or increase any Revolving Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Revolving Facility Commitments of the non-Defaulting Lenders or cash collateral will be provided by the Borrower in accordance with Section 2.22(c), and participating interests in any such newly issued or increased Revolving Letter of Credit or amend newly made Swingline Loan shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.22(c)(i) (and Defaulting Lenders shall not participate therein); and
(e) Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of such Defaulting Lender shall be applied at such time or times as may be determined by the Administrative Agent as follows: (i) first, to the payment of any outstanding amounts owing by such Defaulting Lender to the Administrative Agent hereunder, (ii) second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Issuing Bank or Swingline Lender, (iii) third, as the Borrower may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which that Defaulting Lender has failed to fund its portion thereof as required by this Agreement, (iv) fourth, if so determined by the Administrative Agent or requested by an Issuing Bank 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 Revolving Letter of Credit Credit, (v) fifth, to increase the face amount thereofpayment of any amounts owing to the Lenders or an Issuing Bank or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender or such Issuing Bank or Swingline Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, alter (vi) sixth, so long as no Default or Event of Default exists, to the drawing terms thereunder or extend payment of any amounts owing to the expiry date thereofBorrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against that Defaulting Lender as a result of that Defaulting Lender’s breach of its obligations under this Agreement and (vii) seventh, unless the Letter of Credit Issuer is reasonably satisfied that any exposure that would result from the exposure to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction, provided, with respect to this clause (vii), that if such payment is eliminated or fully covered by the Revolving Credit Commitments (x) a prepayment of the Nonprincipal amount of any Loans in respect of which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 2.11 are satisfied, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Lender. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by Cash Collateralization a Defaulting Lender or to post cash collateral pursuant to Section 2.05(j) shall be deemed paid to and redirected by that Defaulting Lender, and each Lender irrevocably consents hereto.
(f) In the event that the Administrative Agent, the Borrower, each Issuing Bank and each Swingline Lender each agrees that a combination thereof 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 the requirements of Section 2.16(c) above or otherwise in a manner reasonably satisfactory to the Letter of Credit Issuer; andits Revolving Facility Percentage.
Appears in 4 contracts
Sources: Credit Agreement (Crestwood Midstream Partners LP), Credit Agreement (Crestwood Midstream Partners LP), Credit Agreement (Crestwood Midstream Partners LP)
Defaulting Lenders. Notwithstanding any provision of this Agreement any Loan Document to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(ai) fees Commitment Fees otherwise payable pursuant to Section 3.05(a) shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a);Lender.
(bii) the The Commitment of and the Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, the Majority Lenders or the Required Lenders or any other requisite Lenders each adversely affected Lender have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 13.112.02); , and no consent of such Defaulting Lender shall be required to take any action hereunder that requires the consent of all Lenders, the Majority Lenders or each adversely affected Lender (including any consent to any amendment or waiver pursuant to Section 12.02), provided that (i) any waiver, amendment or modification (A) that would increase the Commitment of such Defaulting Lender, (B) that would reduce the principal of any Loan owed to such Defaulting Lender or extend the final maturity thereof or (C) requiring the consent of all Lenders or each adversely affected Lender which affects such Defaulting Lender differently than all other Lenders or all other adversely affected Lenders Lenders, as the case may be, shall require the consent of such Defaulting Lender and (ii) Lender; provided further, that any amendment to the Commitment of any Defaulting Lender may not be increased or extended without foregoing proviso shall require the consent of such Lender;all Lenders, including any Defaulting Lenders.
(ciii) if If any Swingline LC Exposure or Letter of Credit Swingline Exposure exists at the time a Lender becomes a Defaulting Lender, then then:
(iA) all or any part of such Letter of Credit LC Exposure of such Defaulting Lender and such or Swingline Exposure of such Defaulting Lender will, subject to the limitation in the proviso below, automatically shall be reallocated (effective on as of the day date such Lender becomes a Defaulting Lender) among the Non-Defaulting Lenders pro rata in accordance with their respective Applicable Percentages (for the purposes of such reallocation, the Defaulting Lender’s Commitment shall be disregarded in determining the Non-Defaulting Lenders’ Applicable Percentages), but only to the extent that (x) the sum of all Non-Defaulting Lenders’ Revolving Credit Commitment Percentage; provided that Exposures plus such Defaulting Lender’s LC Exposure and Swingline Exposure does not exceed the total of all Non-Defaulting Lenders’ Commitments, (Ay) the sum of each Non-Defaulting Lender’s Revolving Credit Exposure may plus its reallocated share of such Defaulting Lender’s LC Exposure and Swingline Exposure does not in any event exceed the Revolving Credit Commitment of such Non-Defaulting Lender as in effect Lender’s Commitment and (z) no Event of Default has occurred and is continuing at the time of such reallocation and time;
(B) subject to Section 13.21, neither such if the reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Letter of Credit Issuer, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, described in clause (iiA) to the extent that all or any portion (the “unreallocated portion”) of the Defaulting Lender’s Letter of Credit Exposure and Swingline Exposure above cannot, or can only partially, be so reallocated to Non-Defaulting Lenderseffected, whether by reason of the first proviso in Section 2.16(c)(i) above or otherwise, then the Borrower shall shall, within two three (3) Business Days following written notice by from the Administrative Agent (x) firstAgent, prepay cash collateralize such Defaulting Lender’s LC Exposure and Swingline Exposure (after giving pro forma effect to any partial reallocation pursuant to clause (iA) above) and (y) second, Cash Collateralize such Defaulting Lender’s Letter of Credit Exposure (after giving pro forma effect to any partial reallocation pursuant to clause (i) above), in accordance with the procedures set forth in Section 3.8 2.07(e) for so long as such Letter of Credit LC Exposure or Swingline Exposure is outstanding, outstanding and the relevant Defaulting Lender remains a Defaulting Lender;
(iiiC) if the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(c4.03(c)(iii), then the Borrower shall not be required to pay any participation fees to such Defaulting Lender pursuant to Section 4.1(c3.05(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Letter of Credit LC Exposure is Cash Collateralized, cash collateralized;
(ivD) if all or any portion of the Letter of Credit LC Exposure of the Non-such Defaulting Lenders Lender is reallocated pursuant to the requirements of this Section 2.16(c4.03(c)(iii), then the fees payable to the Lenders pursuant to Section 4.1(cSections 3.05(a) and 3.05(b) shall be adjusted in accordance with such Non-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to such Defaulting Lender’s Letter of Credit Exposure during the period that such Defaulting Lender’s Letter of Credit Exposure is reallocated, or Applicable Percentages; and
(vE) if any Defaulting Lender’s Letter of Credit LC Exposure is neither Cash Collateralized cash collateralized nor reallocated pursuant to the requirements of this Section 2.16(c4.03(c)(iii), then, without prejudice to any rights or remedies of the Letter of Credit Issuer any Issuing Bank or any Lender hereunder, all participation fees payable under Section 4.1(c3.05(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure shall be payable to the Letter applicable Issuing Banks, ratably based on the portion of such LC Exposure attributable to Letters of Credit Issuer issued by each such Issuing Bank, until such Letter of Credit LC Exposure is Cash Collateralized reallocated and/or reallocated;
cash collateralized pursuant to clause (dA) or (iB) the Letter of Credit Issuer will not be required to issue any new Letter of Credit or amend any outstanding Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the Letter of Credit Issuer is reasonably satisfied that any exposure that would result from the exposure to such Defaulting Lender is eliminated or fully covered by the Revolving Credit Commitments of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof in accordance with the requirements of Section 2.16(c) above or otherwise in a manner reasonably satisfactory to the Letter of Credit Issuer; andabove.
Appears in 4 contracts
Sources: Credit Agreement (Exterran Corp), Credit Agreement (Exterran Corp), Credit Agreement (Exterran Holdings Inc.)
Defaulting Lenders. 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 Commitment Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a);
(b) the The Commitment of and the Revolving Credit Total Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, the Majority Lenders or the Required Lenders or any other requisite Borrowing Base 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 (i) any waiver, amendment or modification requiring the consent of all Lenders pursuant to Section 13.1 (other than Section 13.1(x)) or requiring the consent of each affected Lender which affects such Defaulting Lender differently than other affected Lenders pursuant to Section 13.1(i) or (ix), shall require the consent of such Defaulting Lender (which for the avoidance of doubt would include any change to the Maturity Date applicable to such Defaulting Lender, decreasing or forgiving any principal or interest due to such Defaulting Lender, any decrease of any interest rate applicable to Loans made by such Defaulting Lender (other than the waiving of post-default interest rates) and any increase in such Defaulting Lender’s Commitment) and (ii) any redetermination, whether an increase, decrease or affirmation, of the Borrowing Base shall occur without the participation of a Defaulting Lender, but the Commitment (i.e., the Commitment Percentage of any the Borrowing Base) of a Defaulting Lender may not be increased or extended without the consent of such Defaulting Lender;
(c) if If any Swingline Exposure or Letter of Credit Exposure exists at the time a Lender becomes a Defaulting Lender, then (i) all or any part of such Swingline Exposure and Letter of Credit Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Non-Defaulting Lenders pro rata in accordance with their respective Revolving Credit Commitment PercentagePercentages; provided that (A) each Non-Defaulting Lender’s Revolving Credit Total Exposure may not in any event exceed the Revolving Credit Commitment Percentage of the Loan Limit of such Non-Defaulting Lender as in effect at the time of such reallocation and (B) subject to Section 13.21, neither such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Letter of Credit Issuer, the Swingline Lender Issuers or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, (ii) to the extent that all or any portion (the “unreallocated portion”) of the Defaulting Lender’s Swingline Exposure or Letter of Credit Exposure and Swingline Exposure cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(c)(i2.15(c)(i) above or otherwise, the Borrower shall within two Business Days following notice by the Administrative Agent (x) first, prepay such Swingline Exposure (after giving pro forma effect to any partial reallocation pursuant to clause (i) above) and (y) second, Cash Collateralize for the benefit of the applicable Letter of Credit Issuer’ only the Borrower’s obligations corresponding to such Defaulting Lender’s Letter of Credit Exposure (after giving pro forma effect to any partial reallocation pursuant to clause (i) above), in accordance with the procedures set forth in Section 3.8 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 the requirements of this Section 2.16(c2.15(c), the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c4.1(b) with respect to such Defaulting Lender’s 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 the requirements of this Section 2.16(c2.15(c), then the fees Letter of Credit Fees payable to for the account of the Lenders pursuant to Section 4.1(c4.1(b) shall be adjusted in accordance with such Non-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay any fees Swingline or Letter of Credit Fees to the Defaulting Lender pursuant to Section 4.1(c4.1(b) with respect to such Defaulting Lender’s Letter of Credit Exposure during the period that such Defaulting Lender’s Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Letter of Credit Exposure is neither Cash Collateralized nor reallocated pursuant to the requirements of this Section 2.16(c2.15(c), then, without prejudice to any rights or remedies of the Letter of Credit Issuer or any Lender hereunder, all fees Letter of Credit Fees payable under Section 4.1(c4.1(b) with respect to 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;
(d) (i) So long as any Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and no Letter of Credit Issuer will not be required to issue any new Letter of Credit or amend any outstanding Letter of Credit to increase the face amount Stated Amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the Letter of Credit Issuer is reasonably satisfied that any exposure that would result from the exposure to such Defaulting Lender is eliminated or fully covered by the Revolving Credit Commitments of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof in accordance with the requirements of Section 2.16(cclause (c) above or otherwise in a manner reasonably satisfactory to the Letter of Credit Issuer, and participating interests in any such newly issued or increased Letter of Credit or newly made Swingline Loan shall be allocated among Non-Defaulting Lenders in a manner consistent with Section 2.15(c)(i) (and Defaulting Lenders shall not participate therein); and
(e) If the Borrower, the Administrative Agent , the Swingline Lender and each Letter of Credit Issuer agree in writing in their discretion that a Lender that is a Defaulting Lender should no longer be deemed to be a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon, as of the effective date specified in such notice and subject to any conditions set forth therein, such Lender will cease to be a Defaulting Lender and will be a Non-Defaulting Lender and any applicable Cash Collateral shall be promptly returned to the Borrower and any Letter of Credit Exposure of such Lender reallocated pursuant to Section 2.15(c) shall be reallocated back to such Lender; provided that, except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Non-Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from such Lender’s having been a Defaulting Lender.
(f) Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of that Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Section 11 or otherwise, and including any amounts made available to the Administrative Agent by that Defaulting Lender pursuant to Section 13.8), 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 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 each Letter of Credit Issuer and the Swingline Lender hereunder; third, as the Borrower may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which that Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fourth, if so determined by the Administrative Agent and the Borrower, to be held in a non-interest bearing deposit account and released in order to satisfy obligations of that Defaulting Lender to fund Loans under this Agreement; fifth, to the payment of any amounts owing to the Lenders, the Letter of Credit Issuers or the Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, such Letter of Credit Issuer or the Swingline Lender against that Defaulting Lender as a result of that Defaulting Lender’s breach of its obligations under this Agreement; sixth, so long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against that Defaulting Lender as a result of that Defaulting Lender’s breach of its obligations under this Agreement; and seventh, to that Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is a payment of the principal amount of any Loans or Unpaid Drawings, such payment shall be applied solely to pay the relevant Loans of, and Unpaid Drawings owed to, the relevant non-Defaulting Lenders on a pro rata basis prior to being applied in the manner set forth in this Section 2.15(f). 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 Section 3.8 shall be deemed paid to and redirected by that Defaulting Lender, and each Lender irrevocably consents hereto.
Appears in 4 contracts
Sources: Credit Agreement (Samson Resources Corp), Credit Agreement (Samson Resources Corp), Fourth Amendment Agreement (Samson Resources Corp)
Defaulting Lenders. 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 Commitment of such Defaulting Lender pursuant to Section 4.1(a)2.6;
(b) the Commitment Revolving Commitments and Revolving Extensions of and the Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders or any other requisite Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 13.1); hereunder, provided that (i) any waiver, amendment or modification requiring the consent of all Lenders shall require the consent of such Defaulting Lender, and any waiver, amendment or each modification requiring the consent of any affected Lender which affects such Defaulting Lender differently than other or all affected Lenders or such Lender shall require the consent of such Defaulting Lender and (ii) the Commitment of any Defaulting that is an affected Lender may not be increased or extended without the consent of such Lender;
(c) if any Swingline Exposure Loans or Letter of Credit Exposure L/C Obligations exists at the time a Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Letter of Credit Exposure of such Defaulting Lender Swingline Loans and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the proviso below, automatically L/C Obligations shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata in accordance with their respective Revolving Credit Commitment Percentage; provided that (A) each Non-Defaulting Lender’s Revolving Credit Exposure may not in any event exceed the Revolving Credit Commitment of such Non-Defaulting Lender as in effect at the time of such reallocation and (B) subject to Section 13.21, neither such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Letter of Credit Issuer, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, (ii) Percentages but only to the extent that (x) the sum of all or any portion (the “unreallocated portion”) of the non-Defaulting Lender’s Letter Lenders’ Revolving Extensions of Credit Exposure does not exceed the total of all non-Defaulting Lenders’ Revolving Commitments and Swingline Exposure (y) the conditions set forth in Section 5.2 are satisfied at such time; and
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(c)(i) above or otherwiseeffected, the applicable Borrower shall within two one Business Days Day following notice by the Administrative Agent (x) first, prepay such Defaulting Lender’s Revolving Percentage of the Swingline Exposure Loans and (y) second, cash collateralize such Defaulting Lender’s Revolving Percentage of the L/C Obligations (after giving pro forma 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 pro forma effect to any partial reallocation pursuant to clause (i) above), in accordance with the procedures set forth in Section 3.8 8 for so long as such Letter of Credit Exposure is L/C Obligations are outstanding, unless the Swingline Lender or the applicable Issuing Lender, as applicable, have agreed on an alternate arrangement;
(iii) if the applicable Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s Letter Revolving Percentage of Credit Exposure the L/C Obligations pursuant to the requirements of this Section 2.16(c2.21(c), the such Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c) 3.3 with respect to such Defaulting Lender’s Letter Revolving Percentage of Credit Exposure the L/C Obligations during the period of such Defaulting Lender’s Letter of Credit Exposure is Cash Collateralized, collateralization;
(iv) if the Letter of Credit Exposure Revolving Percentages of the NonL/C Obligations of the non-Defaulting Lenders is are reallocated pursuant to the requirements of this Section 2.16(c2.21(c), then the fees payable to the Lenders pursuant to Section 4.1(c) 3.3 shall be correspondingly adjusted for the benefit of such non-Defaulting Lenders in accordance with such Non-Defaulting Lenders’ their Revolving Credit Commitment Percentages and the Borrower shall not be required to pay any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to such Defaulting Lender’s Letter of Credit Exposure during the period that such Defaulting Lender’s Letter of Credit Exposure is reallocated, or Percentages; or
(v) if any Defaulting Lender’s Letter Revolving Percentage of Credit Exposure the L/C Obligations is neither Cash Collateralized cash collateralized nor reallocated pursuant to the requirements of this Section 2.16(c2.21(c), then, without prejudice to any rights or remedies of the Letter of Credit Issuer applicable Issuing Lender or any Lender hereunder, all fees that otherwise would have been payable to such Defaulting Lender under Section 4.1(c) 3.3 with respect to such Defaulting Lender’s Letter Revolving Percentage of Credit Exposure the L/C Obligations shall be payable to the Letter of Credit Issuer applicable Issuing Lender until such Letter Revolving Percentage of Credit Exposure the L/C Obligations is Cash Collateralized cash collateralized and/or reallocated;
(d) (i) so long as any Lender is a Defaulting Lender, the Letter of Credit Issuer will Swingline Lender shall not be required to issue fund any new Swingline Loan and the Issuing Lenders 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 and/or cash collateral will be provided by the Borrowers in accordance with Section 2.21(c), and participating interests in any such newly issued or increased Letter of Credit or amend any newly made Swingline Loan shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.21(c)(i) (and Defaulting Lenders shall not participate therein);
(e) if no Swingline Loans or L/C Obligations then exist, or all the obligations of the Defaulting Lender in respect of the outstanding Letter Swingline Loans or L/C Obligations have been reallocated, cash collateralized or prepaid as contemplated in paragraph (c)(i) or (ii) of Credit this Section 2.21, the Company shall have the right, notwithstanding Section 2.15, to increase terminate the face amount thereofRevolving Commitment of such Defaulting Lender only upon not less than three Business Days prior notice to the Administrative Agent and payment in full on the date of such termination to the Administrative Agent, alter for the drawing terms thereunder or extend account of such Defaulting Lender, of the expiry date thereofprincipal and accrued interest and fees then owing to such Defaulting Lender, unless with the Letter of Credit Issuer is reasonably satisfied that any exposure that would result from the exposure Company remaining liable to such Defaulting Lender under Section 2.18 if such payment is eliminated or fully covered made in respect of any Eurocurrency Loan other than on the last day of the Interest Period relating thereto; and
(f) any amount payable to such Defaulting Lender hereunder on account of any fees shall, in lieu of being distributed to such Defaulting Lender, be retained by the Revolving Credit Commitments Administrative Agent in a segregated account and, subject to any applicable requirements of law, be applied at such time or times as may be determined by the Administrative Agent (i) first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to the Issuing Lenders or Swingline Lender hereunder, (iii) third, if so determined by the Administrative Agent or requested by an Issuing Lender or Swingline Lender, held in such account as cash collateral for future funding obligations of the NonDefaulting Lender in respect of any existing or future participating interest in any Swingline Loan or Letter of Credit, (iv) fourth, to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (v) fifth, if so determined by the Administrative Agent and the Company, held in such account as cash collateral for future funding obligations of the Defaulting Lender in respect of any Loans under this Agreement, and (vi) sixth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction. In the event that the Administrative Agent, the Company, the Issuing Lenders 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 Revolving Percentages of the non-Defaulting Lenders or by Cash Collateralization or a combination thereof 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 Loans of the other Lenders (other than Swingline Loans) as the Administrative shall determine may be necessary in order for such Lender to hold such Loans in accordance with the requirements of Section 2.16(c) above or otherwise in a manner reasonably satisfactory to the Letter of Credit Issuer; andits Revolving Percentage.
Appears in 4 contracts
Sources: Credit Agreement (First Solar, Inc.), Credit Agreement (First Solar, Inc.), Credit Agreement (First Solar, Inc.)
Defaulting Lenders. 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) fees shall cease to accrue on the unfunded portion of the Revolving Loan Commitment of such Defaulting Lender pursuant to Section 4.1(a2.5(a);
(b) the Revolving Loan Commitment of and the Outstanding Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, the Required Revolving Lenders or the Required Lenders or any other requisite Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 13.18.2); , provided that (i) 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 (ii) the Commitment of any Defaulting Lender may not be increased or extended without the consent of such Lender;
(c) if any Swingline Exposure Swing Line Loans shall be outstanding or Letter of Credit Exposure exists any LC Obligations shall exist at the time a Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Letter of Credit Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the proviso below, automatically be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Non-Defaulting Lenders pro rata in accordance with their respective Revolving Credit Commitment Percentage; provided that (A) each Non-Defaulting Lender’s Revolving Credit Exposure may not in any event exceed the Revolving Credit Commitment of such Non-Defaulting Lender as in effect at the time of such reallocation and (B) subject to Section 13.21, neither such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Letter of Credit Issuer, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, (ii) to the extent that all or any portion (the “unreallocated portion”) of the Defaulting Lender’s Letter of Credit Exposure and Swingline Exposure cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(c)(i) above or otherwise, the Borrower Company shall within two one Business Days Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure (after giving pro forma effect to any partial reallocation pursuant to clause (i) above) outstanding Swing Line Loans and (y) second, Cash Collateralize cash collateralize such Defaulting Lender’s Letter of Credit LC Exposure (after giving pro forma effect to any partial reallocation pursuant to clause (i) above), in accordance with the procedures set forth in Section 3.8 8.1 for so long as such Letter of Credit LC Exposure is outstanding, ;
(iiiii) if the Borrower Cash Collateralizes Company cash collateralizes any portion of such Defaulting Lender’s Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(c)clause (i) above, the Borrower Company shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c) 2.19.4 with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Letter of Credit LC Exposure is Cash Collateralized, cash collateralized; and
(iv) if the Letter of Credit Exposure of the Non-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(c), then the fees payable to the Lenders pursuant to Section 4.1(c) shall be adjusted in accordance with such Non-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to such Defaulting Lender’s Letter of Credit Exposure during the period that such Defaulting Lender’s Letter of Credit Exposure is reallocated, or (viii) if any Defaulting Lender’s Letter of Credit LC Exposure is neither Cash Collateralized nor reallocated not cash collateralized pursuant to the requirements of this Section 2.16(c)clause (i) above, then, without prejudice to any rights or remedies of the Letter of Credit LC Issuer or any Lender hereunder, all letter of credit fees payable under Section 4.1(c) 2.19.4 with respect to such Defaulting Lender’s Letter of Credit LC Exposure shall be payable to the Letter of Credit LC Issuer until such Letter of Credit LC Exposure is Cash Collateralized and/or reallocatedcash collateralized;
(d) (i) so long as any Lender is a Defaulting Lender, the Letter of Credit Issuer will Issuing Bank shall not be required to issue or Modify any new Letter of Credit or amend any outstanding Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereofFacility LC, unless the Letter of Credit Issuer it is reasonably satisfied that the related exposure will be 100% covered by cash collateral provided by the Company in accordance with Section 2.21(c); and
(e) any exposure that would result from the exposure amount payable to such Defaulting Lender is eliminated hereunder (whether on account of principal, interest, fees or fully covered otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 11.2 but excluding Section 2.20) shall, in lieu of being distributed to such Defaulting Lender, be retained by the 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 Agent (i) first, to the payment of any amounts owing by such Defaulting Lender to the Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to the LC Issuer or Swing Line Lender hereunder, (iii) third, to the funding of any Revolving Credit Commitments Loan or the funding or cash collateralization of any participating interest in any Swing Line Loan or Facility LC in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Agent, (iv) fourth, if so determined by the Agent and the Company, held in such account as cash collateral for future funding obligations of the Non-Defaulting Lender under this Agreement, (v) fifth, pro rata, to the payment of any amounts owing to the Company or the Lenders as a result of any judgment of a court of competent jurisdiction obtained by the Company 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 (x) a prepayment of the principal amount of any Loans or Reimbursement Obligations in respect of draws under Facility LCs with respect to which the LC Issuer 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 be applied solely to prepay the Loans of, and Reimbursement Obligations owed to, all Revolving Lenders that are not Defaulting Lenders or by Cash Collateralization or a combination thereof in accordance with the requirements of Section 2.16(c) above or otherwise in a manner reasonably satisfactory pro rata prior to being applied to the Letter prepayment of Credit Issuer; andany Loans, or Reimbursement Obligations owed to, any Defaulting Lender.
Appears in 3 contracts
Sources: Credit Agreement (Actuant Corp), Credit Agreement (Actuant Corp), Credit Agreement (Actuant Corp)
Defaulting Lenders. 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 pursuant to Section 2.10(a) shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a)Lender;
(b) the Commitment of and the Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment or waiver pursuant to Section 13.19.02, except for any amendment or waiver described in Section 9.02(b)(i); , (ii) or (iii)), provided that (i) 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 (ii) the Commitment of any Defaulting Lender may not be increased or extended without the consent of such Lender;
(c) if any Swingline Exposure or Letter of Credit LC Exposure exists at the time a Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Letter of Credit LC Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Commitment Percentage; provided that Exposures plus such Defaulting Lender’s LC Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments, (Ay) each Nonno non-Defaulting Lender’s Revolving Credit Exposure may not in any event will exceed the Revolving Credit Commitment of such Non-Defaulting Lender as in effect at the time of such reallocation Lender’s Commitment, and (Bz) subject to the conditions set forth in Section 13.21, neither 4.02 are satisfied at such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Letter of Credit Issuer, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, time;
(ii) to if the extent that all or any portion reallocation described in clause (the “unreallocated portion”i) of the Defaulting Lender’s Letter of Credit Exposure and Swingline Exposure above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(c)(i) above or otherwiseeffected, the Borrower shall shall, without prejudice to any right or remedy available to it hereunder or under law, within two three Business Days following notice by the Administrative Agent (x) firstAgent, prepay cash collateralize such Swingline Defaulting Lender’s LC Exposure (after giving pro forma 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 pro forma effect to any partial reallocation pursuant to clause (i) above), in accordance with the procedures set forth in Section 3.8 2.04(k) for so long as such Letter of Credit LC Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(c)clause (ii) above, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c2.10(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Letter of Credit LC Exposure is Cash Collateralized, cash collateralized;
(iv) if the Letter of Credit LC Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(c)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(c2.10(a) and Section 2.10(b) shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to such Defaulting Lender’s Letter of Credit Exposure during the period that such Defaulting Lender’s Letter of Credit Exposure is reallocated, or Applicable Percentages; and
(v) if any Defaulting Lender’s Letter of Credit LC Exposure is neither Cash Collateralized cash collateralized nor reallocated pursuant to the requirements of this Section 2.16(c2.17(c), then, without prejudice to any rights or remedies of the Letter of Credit Issuer Issuing Bank or any 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 LC Exposure) and letter of credit fees payable under Section 4.1(c2.10(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure shall be payable to the Letter of Credit Issuer Issuing Bank until such Letter of Credit LC Exposure is Cash Collateralized cash collateralized and/or reallocated;; and
(d) (i) so long as any Lender is a Defaulting Lender, the Letter of Credit Issuer will Issuing Bank shall not be required to issue issue, amend or increase any new 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 Section 2.17(c), and participating interests in any such newly issued or increased Letter of Credit or amend any outstanding Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the Letter of Credit Issuer is reasonably satisfied that any exposure that would result from the exposure to such Defaulting Lender is eliminated or fully covered by the Revolving Credit Commitments of the Nonshall be allocated among non-Defaulting Lenders or by Cash Collateralization or in a combination thereof manner consistent with Section 2.17(c)(i) (and Defaulting Lenders shall not participate therein). In the event that the Administrative Agent, the 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 LC 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 as the Administrative shall determine may be necessary in order for such Lender to hold such Loans in accordance with the requirements of Section 2.16(c) above or otherwise in a manner reasonably satisfactory to the Letter of Credit Issuer; andits Applicable Percentage.
Appears in 3 contracts
Sources: Senior Secured Revolving Credit Agreement (Fifth Street Finance Corp.), Senior Secured Revolving Credit Agreement (Fifth Street Finance Corp), Senior Secured Revolving Credit Agreement (Fifth Street Finance Corp)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion unused amount of the Revolving Commitment of such Defaulting Lender pursuant to Section 4.1(a2.12(a);
(b) the Revolving Commitment of and the Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 13.19.02); provided that (i) any waiveramendment, amendment waiver or other modification requiring the consent of all Lenders or each all Lenders affected Lender which affects such Defaulting Lender differently than other affected Lenders shall thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender and (ii) in accordance with the Commitment of any Defaulting Lender may not be increased or extended without the consent of such Lenderterms hereof;
(c) if any Swingline Exposure or Letter of Credit LC Exposure exists at the time a such Revolving Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Letter of Credit the Swingline Exposure and LC Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Non-Defaulting Lenders pro rata in accordance with their respective Applicable Percentages (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph (c), the percentage of the Aggregate Revolving Credit Commitment Percentage; provided that (A) each Non-Defaulting represented by such Lender’s Revolving Credit Exposure may not in any event exceed the Revolving Credit Commitment of such Non-Defaulting Lender as in effect at the time of such reallocation and (Bcalculated disregarding the Revolving Commitments of the Defaulting Lenders at such time) subject to Section 13.21, neither such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Letter of Credit Issuer, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, (ii) but only to the extent that the sum of all or any portion (the “unreallocated portion”) of the Non-Defaulting Lenders’ Revolving Exposures plus such Defaulting Lender’s Letter of Credit Swingline Exposure and Swingline LC Exposure does not exceed the sum of all Non-Defaulting Lenders’ Revolving Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(c)(i) above or otherwiseeffected, the Borrower shall within two one Business Days Day following notice by the Administrative Agent (xA) first, prepay such Swingline Exposure (after giving pro forma effect to any partial reallocation pursuant to clause (i) above) and (y) second, Cash Collateralize the portion of such Defaulting Lender’s Letter Swingline Exposure that has not been reallocated and (B) second, cash collateralize for the benefit of Credit the Issuing Banks the portion of such Defaulting Lender’s LC Exposure (after giving pro forma effect to any partial reallocation pursuant to clause (i) above), that has not been reallocated in accordance with the procedures set forth in Section 3.8 2.05(i) for so long as such Letter of Credit LC Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(c)clause (ii) above, the Borrower shall not be required to pay any participation fees to such Defaulting Lender pursuant to Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Letter portion of Credit Exposure during the period such Defaulting Lender’s Letter of Credit LC Exposure for so long as such Defaulting Lender’s LC Exposure is Cash Collateralized, cash collateralized;
(iv) if any portion of the Letter of Credit LC Exposure of the Non-such Defaulting Lenders Lender is reallocated pursuant to the requirements of this Section 2.16(c)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(cSections 2.12(a) and 2.12(b) shall be adjusted in accordance with to give effect to such Non-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay reallocation; and
(v) if all or any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to portion of such Defaulting Lender’s Letter of Credit Exposure during the period that such Defaulting Lender’s Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Letter of Credit LC Exposure is neither Cash Collateralized reallocated nor reallocated cash collateralized pursuant to the requirements of this Section 2.16(c)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the Letter of Credit Issuer any Issuing Bank or any other Lender hereunder, all participation fees payable under Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure shall be payable to the Letter Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit Issuer issued by each Issuing Bank) until and to the extent that such Letter of Credit LC Exposure is Cash Collateralized reallocated and/or reallocated;cash collateralized; and
(d) (i) so long as such Revolving Lender is a Defaulting Lender, the Letter of Credit Issuer will Swingline Lender shall not be required to issue fund any new Swingline Loan and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit or amend any outstanding Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereofCredit, unless the Letter of Credit Issuer in each case it is reasonably satisfied that any the related exposure that would result from and the exposure to such Defaulting Lender is eliminated Lender’s then outstanding Swingline Exposure or LC Exposure, as applicable, will be fully covered by the Revolving Credit Commitments of the Non-Defaulting Lenders or and/or cash collateral provided by Cash Collateralization or a combination thereof the Borrower in accordance with Section 2.20(c), and participating interests in any such funded Swingline Loan or in any such issued, amended, reviewed or extended Letter of Credit will be allocated among the requirements of Section 2.16(c) above or otherwise Non-Defaulting Lenders in a manner reasonably consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein). In the event that (x) a Bankruptcy Event with respect to a Revolving Lender Parent shall have occurred following the date hereof and for so long as such Bankruptcy Event shall continue or (y) the Swingline Lender or any Issuing Bank has a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan, and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless the Swingline Lender or such Issuing Bank, as the case may be, shall have entered into arrangements with the Borrower or such Revolving Lender satisfactory to the Letter Swingline Lender or such Issuing Bank, as the case may be, to defease any risk to it in respect of Credit Issuer; andsuch Lender hereunder. In the event that the Administrative Agent, the Borrower, the Swingline Lender and each Issuing Bank each agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender (a “Restored Lender”), then the Swingline Exposure and LC Exposure of the Revolving Lenders shall be reallocated in accordance with their Applicable Percentages and on such date such Restored 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 Restored Lender to hold such Loans in accordance with its Applicable Percentage (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph, the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated including the Revolving Commitment of such Restored Lender but disregarding the Revolving Commitments of the Defaulting Lenders at such time).
Appears in 3 contracts
Sources: Credit Agreement (NCR Corp), Credit Agreement (NCR Corp), Credit Agreement (NCR Corp)
Defaulting Lenders. (a) Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(ai) fees shall cease to accrue on the unfunded portion of the Commitment of such no Defaulting Lender shall be entitled to receive any commitment fee pursuant to Section 4.1(a2.12(a) for any period during which that Lender is a Defaulting Lender (and the Borrowers shall not be required to pay at any time any such fee that otherwise would have been required to have been paid to that Defaulting Lender);
(bii) the Commitment of Commitments, Term Loan Exposure and the Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all the Required Lenders or the Required Lenders or any other requisite Facility Lenders have taken or may take any action hereunder (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 13.110.02); provided provided, that (iy) 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 (ii) the Commitment of any Defaulting Lender Lender’s Commitments may not be increased or extended without its consent and (z) the consent principal amount of, or interest or fees payable on, Loans or 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;
(ciii) if any Swingline Exposure or Letter of Credit LC Exposure exists at the time a such Lender becomes a Defaulting Lender, then Lender then:
(iA) all or any part of such Letter of Credit the Swingline Exposure and LC Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata that are Revolving Lenders in accordance with their respective Revolving Credit Commitment Percentage; provided that Percentages (A) each Non-calculated without regard to such Defaulting Lender’s Revolving Credit Exposure may not in any event exceed the Revolving Credit Commitment of such Non-Defaulting Lender as in effect at the time of such reallocation and (BCommitment) subject to Section 13.21, neither such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Letter of Credit Issuer, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, (ii) but only to the extent that (x) the sum of all or any portion (the “unreallocated portion”) of the such non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Letter of Credit Swingline Exposure and Swingline LC Exposure does not exceed the total of all non-Defaulting Lenders’ Revolving Commitments and (y) the conditions set forth in Section 4.02(a) and (b) are satisfied at such time;
(B) if the reallocation described in clause (i) above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(c)(i) above or otherwiseeffected, the Borrower Revolving Borrowers shall within two one Business Days Day following notice by the Administrative Agent Agent, without prejudice to any right or remedy available to them hereunder or under law, (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of the Issuing Bank only the Revolving Borrowers’ obligations corresponding to such Defaulting Lender’s LC Exposure (after giving pro forma 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 pro forma effect to any partial reallocation pursuant to clause (i) above), in accordance with the procedures set forth in Section 3.8 2.06(j) for so long as such Letter of Credit LC Exposure is outstanding, ;
(iiiC) if the a Revolving Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(c)clause (ii) above, the such Revolving Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c2.12(c) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Letter of Credit LC Exposure is Cash Collateralized, cash collateralized;
(ivD) if the Letter of Credit LC Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(c)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(c2.12(a) and Section 2.12(c) shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay Percentages; and
(E) if all or any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to portion of such Defaulting Lender’s Letter of Credit Exposure during the period that such Defaulting Lender’s Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Letter of Credit LC Exposure is neither Cash Collateralized reallocated nor reallocated cash collateralized pursuant to the requirements of this Section 2.16(c)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the Letter of Credit Issuer Issuing Bank or any other Lender hereunder, all letter of credit fees payable under Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure shall be payable to the Letter of Credit Issuer Issuing Bank until and to the extent that such Letter of Credit LC Exposure is Cash Collateralized reallocated and/or reallocated;cash collateralized.
(div) (i) so long as such Revolving Lender is a Defaulting Lender, the Letter of Credit Issuer will Swingline Lender shall not be required to issue fund any new Swingline Loan and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Revolving Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Revolving Borrowers in accordance with Section 2.20(a)(iii), and participating interests in any newly made Swingline Loan or any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.20(a)(iii)(C) (and such Defaulting Lender shall not participate therein).
(b) In the event that the Administrative Agent, the Revolving Borrowers, the Swingline Lender 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 Swingline Exposure and LC Exposure 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 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 Percentage.
(c) Any payment of principal, interest, fees or amend other amounts received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article VII or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 10.08 shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any outstanding Letter amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of Credit any amounts owing by such Defaulting Lender to increase any Issuing Bank or Swingline Lender hereunder; third, to cash collateralize the face amount thereofIssuing Banks’ LC Exposure with respect to such Defaulting Lender; fourth, alter as the drawing terms thereunder Borrower may request (so long as no Default or extend Event of Default exists), to the expiry date thereoffunding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, unless as determined by the Letter of Credit Issuer is reasonably satisfied that any exposure that would result from Administrative Agent; fifth, if so determined by the exposure 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 the Issuing Banks’ future LC Exposure with respect to such Defaulting Lender is eliminated 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 fully covered Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, the Issuing Banks or Swingline Lenders 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 Revolving Credit Commitments 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 Nonprincipal amount of any Loans or LC Disbursements 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 4.02 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and LC Disbursements owed to, all non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or LC Disbursements owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in obligations under any issued Letters of Credit and Swingline Loans are held by Cash Collateralization or a combination thereof the Lenders pro rata in accordance with the requirements of commitments under the applicable Facility without giving effect to Section 2.16(c2.20(a)(iii). Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) above to pay amounts owed by a Defaulting Lender or otherwise in a manner reasonably satisfactory to the Letter of Credit Issuer; andpost cash collateral pursuant to this Section 2.20(c) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
Appears in 3 contracts
Sources: Revolving Credit and Term Loan Agreement, Revolving Credit and Term Loan Agreement (Cooper Companies, Inc.), Revolving Credit and Term Loan Agreement (Cooper Companies Inc)
Defaulting Lenders. 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 Commitment of such Defaulting Lender pursuant to Section 4.1(a)2.14;
(b) the Commitment of and the Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders or any other requisite Lenders have taken or may take any action hereunder (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 13.110.02); provided provided, that this clause (ib) any waivershall not apply to the vote of a Defaulting Lender in the case of an amendment, amendment waiver or other modification requiring the consent of all Lenders such Lender or each Lender affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lender and (ii) the Commitment of any Defaulting Lender may not be increased or extended without the consent of such Lenderthereby;
(c) if any Swingline Exposure or Letter of Credit LC Exposure exists at the time a such Lender becomes a Defaulting Lender, then Lender and no Default or Event of Default has occurred and is continuing then:
(i) all or any part of such Letter of Credit the LC Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata in accordance with their respective Revolving Credit Commitment Percentage; provided that (A) each NonApplicable Percentages but only to the extent the sum of all non-Defaulting Lenders’ aggregate LC Exposure plus the aggregate amount of all non-Defaulting Lenders’ outstanding Loans plus such Defaulting Lender’s Revolving Credit LC Exposure may does not in any event exceed the Revolving Credit Commitment total of such Nonall non-Defaulting Lender as in effect at the time of such reallocation and (B) subject to Section 13.21, neither such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Letter of Credit Issuer, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, Lenders’ Commitments;
(ii) to if the extent that all or Company cash collateralizes any portion (the “unreallocated portion”) of the such Defaulting Lender’s Letter of Credit LC Exposure and Swingline Exposure cannot, or can only partially, be so that has not been reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(c)(i) above or otherwise, the Borrower shall within two Business Days following notice by the Administrative Agent (x) first, prepay such Swingline Exposure (after giving pro forma 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 pro forma effect to any partial reallocation pursuant to clause (i) above), in accordance with the procedures set forth in Section 3.8 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 the requirements of this Section 2.16(c), the Borrower Company shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c) 2.14 with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Letter of Credit LC Exposure is Cash Collateralized, cash collateralized;
(iviii) if the Letter of Credit LC Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(c)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(c) 2.14 shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay Applicable Percentages; and
(iv) if all or any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to portion of such Defaulting Lender’s Letter of Credit Exposure during the period that such Defaulting Lender’s Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Letter of Credit LC Exposure is neither Cash Collateralized reallocated nor reallocated cash collateralized pursuant to the requirements of this Section 2.16(c)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the Letter of Credit Issuer Issuing Lender or any other Lender hereunder, all fees payable under Section 4.1(c) 2.14 with respect to such Defaulting Lender’s Letter of Credit LC Exposure shall be payable to the Letter of Credit Issuer Administrative Agent until and to the extent that such Letter of Credit LC Exposure is Cash Collateralized reallocated and/or reallocated;cash collateralized; and
(d) so long as such 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 and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Company in accordance with clause (ic) the above, and participating interests in any newly issued or increased Letter of Credit Issuer will not shall be required to issue any new Letter of Credit or amend any outstanding Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the Letter of Credit Issuer is reasonably satisfied that any exposure that would result from the exposure to allocated among non-Defaulting Lenders in a manner consistent with clause (c)(i) above (and such Defaulting Lender is eliminated or fully covered by shall not participate therein). In the Revolving Credit Commitments event that the Administrative Agent, the Company and each Issuing Lender each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the aggregate LC Exposure of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof in accordance with shall be readjusted to reflect the requirements inclusion of Section 2.16(c) above or otherwise in a manner reasonably satisfactory to the Letter of Credit Issuer; andsuch Lender’s Commitment.
Appears in 3 contracts
Sources: Credit Agreement (Xl Group PLC), Credit Agreement (Xl Group PLC), Credit Agreement (Xl Group PLC)
Defaulting Lenders. 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 Commitment Fees shall cease to accrue on the unfunded portion of the Revolving Commitment of such Defaulting Lender pursuant to Section 4.1(a);
(b) The Commitment, the Commitment of Revolving Exposure and the Revolving Credit Term Loan Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, the Majority Revolving Lenders, the Majority Term Loan Lenders, the Required Revolving Lenders or the Borrowing Base Required Lenders or any other requisite Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 13.114.1); provided that (i) any waiver, amendment or modification requiring the consent of all Lenders pursuant to Section 14.1 (other than Section 14.1(b)(x) or requiring the consent of each affected Lender which affects such Defaulting Lender differently than other affected Lenders pursuant to Section 14.1(b)(i) or (ix) or, shall require the consent of such Defaulting Lender (which for the avoidance of doubt would include any change to the Maturity Date applicable to such Defaulting Lender, decreasing or forgiving any principal or interest due to such Defaulting Lender, any decrease of any interest rate applicable to Loans made by such Defaulting Lender (other than the waiving of post-default interest rates) and any increase in such Defaulting Lender’s Commitment) and (ii) any redetermination, whether an increase, decrease or affirmation, of the Commitment of any Defaulting Lender may not be increased or extended Borrowing Base shall occur without the consent participation of such a Defaulting Lender;
(c) if If any Swingline Exposure or Letter of Credit Exposure exists at the time a Revolving Lender becomes a Defaulting Lender, then (i) all or any part of such Swingline Exposure and Letter of Credit Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically be reallocated (effective on the day such Revolving Lender becomes a Defaulting Lender) among the Non-Defaulting Lenders pro rata in accordance with their respective Revolving Credit Commitment PercentagePercentages; provided that (A) each Non-Defaulting Lender’s Revolving Credit Exposure may not in any event exceed the Revolving Credit Commitment Percentage of the Revolving Loan Limit of such Non-Defaulting Lender as in effect at the time of such reallocation and (B) subject to Section 13.21, neither such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Letter of Credit Issuer, the Swingline Lender Issuers or any other Revolving Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, (ii) to the extent that all or any portion (the “unreallocated portion”) of the Defaulting Lender’s Swingline Exposure or Letter of Credit Exposure and Swingline Exposure cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(c)(i2.15(c)(i) above or otherwise, the Borrower shall within two Business Days following notice by the Administrative Agent or the applicable Letter of Credit Issuer (x) first, prepay such Swingline Exposure (after giving pro forma effect to any partial reallocation pursuant to clause (i) above) and (y) second, Cash Collateralize for the benefit of the applicable Letter of Credit Issuer’ only the Borrower’s obligations corresponding to such Defaulting Lender’s Letter of Credit Exposure (after giving pro forma effect to any partial reallocation pursuant to clause (i) above), in accordance with the procedures set forth in Section 3.8 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 the requirements of this Section 2.16(c2.15(c), the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c4.1(b) with respect to such Defaulting Lender’s 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 the requirements of this Section 2.16(c2.15(c), then the fees Letter of Credit Fees payable to for the account of the Revolving Lenders pursuant to Section 4.1(c4.1(b) shall be adjusted in accordance with such Non-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay any fees Swingline or Letter of Credit Fees to the Defaulting Lender pursuant to Section 4.1(c4.1(b) with respect to such Defaulting Lender’s Letter of Credit Exposure during the period that such Defaulting Lender’s Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Letter of Credit Exposure is neither Cash Collateralized nor reallocated pursuant to the requirements of this Section 2.16(c2.15(c), then, without prejudice to any rights or remedies of the Letter of Credit Issuer or any Revolving Lender hereunder, all fees Letter of Credit Fees payable under Section 4.1(c4.1(b) with respect to 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;
(d) (i) the So long as any Revolving Lender is a Defaulting Lender, no Swingline Lender shall be required to fund any Swingline Loan and no Letter of Credit Issuer will not be required to issue any new Letter of Credit or amend any outstanding Letter of Credit to increase the face amount Stated Amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the Letter of Credit Issuer is reasonably satisfied that any exposure that would result from the exposure to such Defaulting Lender is eliminated or fully covered by the Revolving Credit Commitments of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof in accordance with the requirements of Section 2.16(cclause (c) above or otherwise in a manner reasonably satisfactory to the Letter of Credit Issuer, and participating interests in any such newly issued or increased Letter of Credit or newly made Swingline Loan shall be allocated among Non-Defaulting Lenders in a manner consistent with Section 2.15(c) (and Defaulting Lenders shall not participate therein); and
(e) If the Borrower, the Administrative Agent, the Swingline Lenders and each Letter of Credit Issuer agree in writing in their discretion that a Revolving Lender that is a Defaulting Lender should no longer be deemed to be a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon, as of the effective date specified in such notice and subject to any conditions set forth therein, such Revolving Lender will cease to be a Defaulting Lender and will be a Non-Defaulting Lender and any applicable Cash Collateral shall be promptly returned to the Borrower and any Letter of Credit Exposure of such Revolving Lender reallocated pursuant to Section 2.15(c) shall be reallocated back to such Revolving Lender; provided that, except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Non-Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from such Lender’s having been a Defaulting Lender.
(f) Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of that Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article XII or otherwise, and including any amounts made available to the Administrative Agent by that Defaulting Lender pursuant to Section 14.8), 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 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 each Letter of Credit Issuer and the Swingline Lenders hereunder; third, as the Borrower may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which that Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fourth, if so determined by the Administrative Agent and the Borrower, to be held in a non-interest bearing deposit account and released in order to satisfy obligations of that Defaulting Lender to fund Loans under this Agreement; fifth, to the payment of any amounts owing to the Lenders, the Letter of Credit Issuers or the Swingline Lenders as a result of any judgment of a court of competent jurisdiction obtained by any Lender, such Letter of Credit Issuer or the Swingline Lenders against that Defaulting Lender as a result of that Defaulting Lender’s breach of its obligations under this Agreement; sixth, so long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against that Defaulting Lender as a result of that Defaulting Lender’s breach of its obligations under this Agreement; and seventh, to that Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is a payment of the principal amount of any Loans or Unpaid Drawings, such payment shall be applied solely to pay the relevant Loans of, and Unpaid Drawings owed to, the relevant non-Defaulting Lenders on a pro rata basis prior to being applied in the manner set forth in this Section 2.15(f). 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 Section 3.8 shall be deemed paid to and redirected by that Defaulting Lender, and each Lender irrevocably consents hereto.
Appears in 3 contracts
Sources: Credit Agreement (California Resources Corp), Credit Agreement (California Resources Corp), Credit Agreement (California Resources Corp)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(ai) fees No Defaulting Lender shall cease be entitled to accrue on receive any fee payable under Section 4 or any interest at the unfunded portion Default Rate payable under Section 2.8(d) for any period during which that Lender is a Defaulting Lender (and the Borrower shall not be required to pay any such fee or interest that otherwise would have been required to have been paid to that Defaulting Lender).
(ii) Each Defaulting Lender shall be entitled to receive Revolving Letter of Credit Fees for any period during which that Lender is a Defaulting Lender only to the extent allocable to its applicable Revolving Credit Commitment Percentage of the Commitment Stated Amount of such Letters of Credit for which it has provided cash collateral satisfactory to the applicable Revolving Letter of Credit Issuer.
(iii) With respect to any Revolving Letter of Credit Fee not required to be paid to any Defaulting Lender pursuant to Section 4.1(a);clause (i) or (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 L/C Obligations that has been reallocated to such Non-Defaulting Lender pursuant to clause (b) below, (y) pay to the Revolving Letter of Credit Issuer the amount of any such fee otherwise payable to such Defaulting Lender to the extent allocable to such Revolving Letter of Credit Issuer’s Revolving Credit Exposure to such Defaulting Lender, and (z) not be required to pay the remaining amount of any such fee.
(b) the Commitment of and the If any Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders or any other requisite Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 13.1); provided that (i) 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 (ii) the Commitment of any Defaulting Lender may not be increased or extended without the consent of such Lender;
(c) if any Swingline Exposure or Letter of Credit Exposure exists at the time a Lender becomes a Defaulting Lender, then (i) all or any part of such Revolving Letter of Credit Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Non-Defaulting Lenders pro rata in accordance with their respective Revolving Credit Commitment Percentage; provided that (A) each Non-Defaulting Lender’s Revolving Letter of Credit Exposure may not in any event exceed the Revolving Credit Commitment of such Non-Defaulting Lender as in effect at the time of such reallocation and (B) subject to Section 13.21, neither such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Revolving Letter of Credit IssuerIssuers, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, (ii) to the extent that all or any portion (the “unreallocated portion”) of the Defaulting Lender’s Revolving Letter of Credit Exposure and Swingline Exposure cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(c)(i2.16(b)(i) above or otherwise, the Borrower shall within two Business Days following written notice by the Administrative Agent (x) first, prepay such Swingline Exposure (after giving pro forma effect to any partial reallocation pursuant to clause (i) above) and (y) second, Cash Collateralize such Defaulting Lender’s Revolving Letter of Credit Exposure (after giving pro forma effect to any partial reallocation pursuant to clause (i) above), in accordance with the procedures set forth in Section 3.8 for so long as such Revolving Letter of Credit Exposure is outstanding, (iii) if the Borrower Cash Collateralizes any portion of such Defaulting Lender’s Revolving Letter of Credit Exposure pursuant to the requirements of this Section 2.16(c2.16(b)(i), the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c) with respect to such Defaulting Lender’s Revolving Letter of Credit Exposure during the period such Defaulting Lender’s Revolving Letter of Credit Exposure is Cash Collateralized, (iv) if the Revolving Letter of Credit Exposure of the Non-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(c2.16(b), then the fees payable to the Lenders pursuant to Section 4.1(c) shall be adjusted in accordance with such Non-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to such Defaulting Lender’s Revolving Letter of Credit Exposure during the period that such Defaulting Lender’s Revolving Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Revolving Letter of Credit Exposure is neither Cash Collateralized nor reallocated pursuant to the requirements of this Section 2.16(c2.16(b), then, without prejudice to any rights or remedies of the applicable Revolving Letter of Credit Issuer or any Lender hereunder, all fees payable under Section 4.1(c) with respect to such Defaulting Lender’s Revolving Letter of Credit Exposure shall be payable to the applicable Revolving Letter of Credit Issuer until such Revolving Letter of Credit Exposure is Cash Collateralized and/or reallocated;.
(dc) (i) the No Revolving Letter of Credit Issuer will not be required to issue any new Revolving Letter of Credit or to amend any outstanding Revolving Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder thereof or extend the expiry date thereof, unless the applicable Revolving Letter of Credit Issuer is reasonably satisfied that any exposure that would result from the exposure to such Defaulting Lender is eliminated or fully covered by the Revolving Credit Commitments of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof in accordance with the requirements of Section 2.16(c2.16(b) above or otherwise in a manner reasonably satisfactory to the applicable Revolving Letter of Credit IssuerIssuer and the Borrower.
(d) If the Borrower, the Administrative Agent and the Revolving Letter of Credit Issuers agree in writing in their discretion that a Lender that is a Defaulting Lender should no longer be deemed to be a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon, as of the effective date specified in such notice and subject to any conditions set forth therein, such Lender will cease to be a Defaulting Lender and will be a Non-Defaulting Lender and any applicable Cash Collateral shall be promptly returned to the Borrower and any Revolving Letter of Credit Exposure of such Lender reallocated pursuant to the requirements of Section 2.16(b) shall be reallocated back to such Lender; andprovided that, except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Non-Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from such Lender’s having been a Defaulting Lender.
Appears in 3 contracts
Sources: Credit Agreement (Vistra Energy Corp), Credit Agreement (Energy Future Competitive Holdings Co LLC), Senior Secured Debtor in Possession Credit Agreement (Energy Future Competitive Holdings Co LLC)
Defaulting Lenders. 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 Commitment of such Defaulting Lender pursuant to Section 4.1(a);
(b) the Commitment of and the Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders or any other requisite Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 13.1); provided that (i) 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 (ii) the Commitment of any Defaulting Lender may not be increased or extended without the consent of such Lender;
(c) if any Swingline Exposure or Letter of Credit Exposure exists at the time a Lender becomes a Defaulting Lender, then (i) all or any part of such Letter of Credit Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Non-Defaulting Lenders pro rata in accordance with their respective Revolving Credit Commitment PercentagePercentages; provided that (A) each Non-Defaulting Lender’s Revolving Credit Exposure may not in any event exceed the Revolving Credit Commitment of such Non-Defaulting Lender as in effect at the time of such reallocation and (B) subject to Section 13.21, neither such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the any Letter of Credit Issuer, the any Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, (ii) to the extent that all or any portion (the “unreallocated portion”) of the Defaulting Lender’s Letter of Credit Exposure and Swingline Exposure cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(c)(i) above or otherwise, the Borrower shall within two one Business Days Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure (after giving pro forma 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 pro forma effect to any partial reallocation pursuant to clause (i) above), in accordance with the procedures set forth in Section 3.8 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 the requirements of this Section 2.16(c), the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c) with respect to such Defaulting Lender’s 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 the requirements of this Section 2.16(c), then the fees payable to the Lenders pursuant to Section 4.1(c) shall be adjusted in accordance with such Non-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to such Defaulting Lender’s Letter of Credit Exposure during the period that such Defaulting Lender’s Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Letter of Credit Exposure is neither Cash Collateralized nor reallocated pursuant to the requirements of this Section 2.16(c), then, without prejudice to any rights or remedies of the any Letter of Credit Issuer or any Lender hereunder, all fees payable under Section 4.1(c) with respect to such Defaulting Lender’s Letter of Credit Exposure shall be payable to the Letter of Credit Issuer Issuers until such Letter of Credit Exposure is Cash Collateralized and/or reallocated;
(d) (i) the No Letter of Credit Issuer will not be required to issue any new Letter of Credit or amend any outstanding Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the such Letter of Credit Issuer is reasonably satisfied that any exposure that would result from the exposure to such Defaulting Lender is eliminated or fully covered by the Revolving Credit Commitments of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof in accordance with the requirements of this Section 2.16(c) above 2.16 or otherwise in a manner reasonably satisfactory to the such Letter of Credit Issuer; and
Appears in 3 contracts
Sources: Ninth Amendment (LPL Financial Holdings Inc.), Eighth Amendment (LPL Financial Holdings Inc.), Seventh Amendment (LPL Financial Holdings Inc.)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply until such time as such Lender is no longer a Defaulting Lender, to the extent permitted by applicable law:
(a) No Defaulting Lender shall be entitled to receive any commitment fee under Section 2.10(a) for so long as any period during which such Lender is a Defaulting Lender:
Lender (a) fees and the Borrower shall cease not be required to accrue on the unfunded portion of the Commitment of pay any such fee that otherwise would have been required to have been paid to such Defaulting Lender pursuant to Section 4.1(aLender);.
(b) the The Commitment of and the Revolving Credit Exposure of such the Defaulting Lender shall will not be included in determining whether all Lenders or the Required Lenders or any other requisite Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 13.19.02); provided , except that (i) any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such the Defaulting Lender differently than other affected Lenders shall will require the consent of such the Defaulting Lender and (ii) the Commitment of any Defaulting Lender may not be increased or extended without the consent of such Lender;.
(c) if If any Swingline Exposure or Letter of Credit any LC Exposure exists at the time a Lender becomes is a Defaulting Lender, then then
(i) all or any part of such Letter of Credit Defaulting Lender’s Swingline Participation Amount and LC Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata in accordance with their respective Revolving Credit Commitment Percentage; provided that Applicable Percentages (A) each Non-calculated without regard to such Defaulting Lender’s Revolving Credit Exposure may not Commitment) but only to the extent that (x) the conditions set forth in any event exceed the Revolving Credit Commitment of such Non-Defaulting Lender as in effect Section 4.02 are satisfied at the time of such reallocation (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 (By) subject to Section 13.21, neither such reallocation nor does not cause the aggregate Revolving Credit Exposure of any payment by a Nonnon-Defaulting Lender pursuant thereto will to exceed such non-Defaulting Lender’s Commitment. Subject to Section 9.18, no reallocation hereunder shall constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Letter of Credit Issuer, the Swingline Lender or any other Lender may have party hereunder against such a Defaulting Lender or cause such arising from that Lender having become a Defaulting Lender, including any claim of a non-Defaulting Lender to be as a Nonresult of such non-Defaulting Lender, ’s increased exposure following such reallocation;
(ii) to if the extent that all or any portion reallocation described in clause (the “unreallocated portion”i) of the Defaulting Lender’s Letter of Credit Exposure and Swingline Exposure above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(c)(i) above or otherwiseeffected, the Borrower shall shall, without prejudice to any right or remedy available to it hereunder or under law, within two five Business Days following notice by the Administrative Agent given no later than 12:00 Noon, New York City time (x) first, prepay the Swingline Participation Amount of the Defaulting Lender to the Swingline Lender and (y) second, cash collateralize such Swingline Defaulting Lender’s LC Exposure (after giving pro forma 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 pro forma effect to any partial reallocation pursuant to clause (i) above), in accordance with the procedures set forth in Section 3.8 2.04(j) for so long as such Letter of Credit LC Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(c2.20(c), the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c2.10(b)(i) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Letter of Credit LC Exposure is Cash Collateralized, (iv) cash collateralized; if the Letter of Credit LC Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(c2.20(c)(i), then the fees payable to the Lenders pursuant to Section 4.1(c2.10(a) and Section 2.10(b)(i) shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Revolving Credit Commitment Applicable Percentages and with the balance of such fee, if any, being retained by the Borrower shall not be required to pay any fees for its own account or, to the Defaulting extent any LC Exposure shall then be outstanding, being payable to the Issuing Bank for its own account to the extent such fee relates to the amount of such LC Exposure or, to the extent any Swingline Participation Amount shall then be outstanding, being payable to the Swingline Lender pursuant for its own account to Section 4.1(c) with respect the extent such fee relates to the amount of such Defaulting Lender’s Letter of Credit Exposure during the period that such Defaulting Lender’s Letter of Credit Exposure is reallocated, or Swingline Participation Amount; or
(viv) if any Defaulting Lender’s Letter of Credit LC Exposure is neither Cash Collateralized cash collateralized nor reallocated pursuant to the requirements of this Section 2.16(c2.20(c), then, without prejudice to any rights or remedies of any Issuing Bank or Lender hereunder, the 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) pursuant to Section 2.10(b)(i) 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, (i) the Swingline Lender shall not be required to fund any Swingline Loans unless it is satisfied that the participations therein will be fully allocated among non-Defaulting Lenders in a manner consistent with clause (c)(i) above and the Defaulting Lender shall not participate therein and (ii) no Issuing Bank shall be required to issue, extend, renew or increase any Letter of Credit Issuer unless it is satisfied that the participations in the L/C Obligations related to any existing Letters of Credit as well as the new, extended, renewed or increased Letter of Credit has been or will be fully allocated among the non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i) above and such Defaulting Lender shall not participate therein except to the extent such Defaulting Lender’s participation has been or will be fully cash collateralized in accordance with Section 2.20(c)(ii).
(e) Any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.16(c) but excluding Section 2.17(b)) will, in lieu of being distributed to such Defaulting Lender, be retained by the Administrative Agent in a segregated account and, subject to any applicable requirements of law, be applied at such time or times as may be determined by the Administrative Agent (i) first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to each Issuing Bank and the Swingline Lender hereunder, all fees payable (iii) third, to cash collateralize 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, (iv) fourth, as the Borrower may request (so long as no 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) 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 Section 4.1(cthis Agreement and (y) cash collateralize the Issuing Banks’ future LC Exposure with respect to such Defaulting Lender with respect to future Letters of Credit issued under this Agreement, in accordance with Section 2.20(c)(ii), (vi) sixth, pro rata, to the payment of any amounts then 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 Letter breach of Credit Exposure shall be payable to the Letter of Credit Issuer until such Letter of Credit Exposure is Cash Collateralized and/or reallocated;
its obligations under this Agreement, and (dvii) (i) the Letter of Credit Issuer will not be required to issue any new Letter of Credit or amend any outstanding Letter of Credit to increase the face amount thereofseventh, alter the drawing terms thereunder or extend the expiry date thereof, unless the Letter of Credit Issuer is reasonably satisfied that any exposure that would result from the exposure to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is eliminated or fully covered by the Revolving Credit Commitments a payment of the Nonprincipal amount of any Loans or LC Disbursements 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 4.02 were satisfied and waived, such payment shall be applied solely to pay the Loans of, and LC Disbursements owed to, all non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or LC Disbursements owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in LC Obligations and Swingline Loans are held by Cash Collateralization or a combination thereof the Lenders pro rata in accordance with their Applicable Percentages without giving effect to Section 2.20(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 cash collateral pursuant to this Section shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
(f) If any Lender is a Defaulting Lender, then the requirements Borrower may, at its sole expense and effort, upon notice to such Lender and the Administrative Agent, require such Lender to be replaced in accordance with Section 2.17(b).
(g) In the event that the Administrative Agent, the Borrower, each Issuing Bank and the Swingline Lender each agrees in writing that a Defaulting Lender is no longer a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of Section 2.16(c) above or otherwise the effective date specified in a manner reasonably satisfactory 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 Letter extent applicable, purchase at par that portion of the Loans of the other Lenders (other than Swingline Loans) or take such other actions as the Administrative Agent may determine to be necessary to cause the Loans and funded and unfunded participations in Letters of Credit Issuerand Swingline Loans to be held pro rata by the Lenders in accordance with their Applicable Percentages (without giving effect to Section 2.20(c)(i)), whereupon such Lender will cease to be a Defaulting Lender; andprovided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while such Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.
Appears in 3 contracts
Sources: Master Assignment Agreement and Fifth Amendment to Third Amended and Restated Credit Agreement (Natural Resource Partners Lp), Credit Agreement (Natural Resource Partners Lp), Second Amendment to Third Amended and Restated Credit Agreement
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Credit 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 Section 4.1(a2.13(a);
(b) the Revolving Credit Commitment of and the Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders or any other requisite Lenders have taken or may take any action hereunder (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 13.19.02); provided provided, that this clause (ib) any waivershall not apply to the vote of a Defaulting Lender in the case of an amendment, amendment waiver or other modification requiring the consent of all Lenders or each Lender affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lender and (ii) the Commitment of any Defaulting Lender may not be increased or extended without the consent of such Lenderthereby;
(c) if any Swingline Exposure or Letter of Credit LC Exposure exists at the time a such Lender becomes a Defaulting Lender, then Lender then:
(i) so long as no Event of Default shall have occurred and be continuing, all or any part of such Letter of Credit the Swingline Exposure and LC Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata that are Revolving Credit Lenders in accordance with their respective Applicable Revolving Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Commitment Percentage; provided that Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the total of all non-Defaulting Lenders’ Revolving Credit Commitments and (Ay) each Nonthe sum of any non-Defaulting Lender’s Revolving Credit Exposure may not in any event exceed the plus its Applicable Revolving Credit Commitment Percentage of such Non-Defaulting Lender as in effect at the time of Lenders’ Swingline Exposure and LC Exposure does not exceed such reallocation and (B) subject to Section 13.21, neither such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Letter of Credit Issuer, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Nonnon-Defaulting Lender, ’s Revolving Credit Commitment;
(ii) to if the extent that all or any portion reallocation described in clause (the “unreallocated portion”i) of the Defaulting Lender’s Letter of Credit Exposure and Swingline Exposure above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(c)(i) above or otherwiseeffected, the Borrower shall within two one Business Days Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of the Issuing Banks only the Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure (after giving pro forma 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 pro forma effect to any partial reallocation pursuant to clause (i) above), in accordance with the procedures set forth in Section 3.8 2.05(k) for so long as such Letter of Credit LC Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(c)clause (ii) above, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c2.13(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Letter of Credit LC Exposure is Cash Collateralized, cash collateralized;
(iv) if the Letter of Credit LC Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(c)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(c2.13(a) and (b) shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Applicable Revolving Credit Commitment Percentages and the Borrower shall not be required to pay Percentages; and
(v) if all or any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to portion of such Defaulting Lender’s Letter of Credit Exposure during the period that such Defaulting Lender’s Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Letter of Credit LC Exposure is neither Cash Collateralized reallocated nor reallocated cash collateralized pursuant to the requirements of this Section 2.16(c)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the Letter of Credit Issuer Issuing Banks or any other Revolving Credit Lender hereunder, all fees payable under Section 4.1(c2.13(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure shall be payable to the Letter of Credit Issuer applicable Issuing Bank until and to the extent that such Letter of Credit LC Exposure is Cash Collateralized reallocated and/or reallocated;cash collateralized; and
(d) (i) so long as such Lender is a Defaulting Lender, the Letter of Credit Issuer will Swingline Lender shall not be required to issue fund any new Swingline Loan and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit or amend any outstanding Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereofCredit, unless the Letter of Credit Issuer it is reasonably satisfied that any the related exposure that would result from and the exposure to such Defaulting Lender is eliminated or fully Lender’s then outstanding LC Exposure will be 100% covered by the Revolving Credit Commitments of the Nonnon-Defaulting Lenders or and/or cash collateral will be provided by Cash Collateralization or a combination thereof the Borrower in accordance with the requirements Section 2.21(c), and participating interests in any newly made Swingline Loan or any newly issued or increased Letter of Section 2.16(c) above or otherwise Credit shall be allocated among non-Defaulting Lenders that are Revolving Credit Lenders in a manner reasonably consistent with Section 2.21(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to a Lender Parent of any Revolving Credit Lender shall occur following the date hereof and for so long as such event shall continue or (ii) the Swingline Lenders or the applicable Issuing Bank has a good faith belief that any Revolving Credit Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lenders shall not be required to fund any Swingline Loan and such Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless the Swingline Lenders or such Issuing Bank, as the case may be, shall have entered into arrangements with the Borrower or such Lender, satisfactory to the Letter Swingline Lenders or such Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the Borrower, the Swingline Lenders and the Issuing Banks each agrees that a Defaulting Lender has adequately remedied all matters that caused such Revolving Credit Issuer; andLender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure of the Revolving Credit Lenders shall be readjusted to reflect the inclusion of such Lender’s Revolving Credit Commitment and on such date such Lender shall purchase at par such of the Revolving Loans of the other Revolving Credit Lenders as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Revolving Loans in accordance with its Applicable Revolving Percentage.
Appears in 3 contracts
Sources: Credit Agreement (Huntington Ingalls Industries, Inc.), Credit Agreement (Huntington Ingalls Industries, Inc.), Credit Agreement (Huntington Ingalls Industries, Inc.)
Defaulting Lenders. 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 Fees set forth in Section 2.10(a) shall cease to accrue on the unfunded portion of the Commitment Commitments of such Defaulting Lender pursuant to Section 4.1(a)Lender;
(b) To the Commitment extent permitted by applicable Law, any voluntary prepayment of Revolving Loans shall, if Borrower so directs at the time of making such voluntary prepayment, be applied to the Revolving Loans of other Lenders as if such Defaulting Lender had no Revolving Loans outstanding and the Aggregate Exposure of such Defaulting Lender in respect of its Revolving Credit Commitment were zero;
(c) The Aggregate Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders or any other requisite Lenders have taken or may take any action hereunder (including any consent to any amendment amendment, waiver or waiver modification pursuant to Section 13.110.01); , provided that (i) 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 (ii) in any event, no such amendment, modification, or waiver shall increase the Commitment Revolving Commitments or the principal amount of any Loans of such Defaulting Lender may not be increased Lender, extend the maturity date applicable thereto or extended decrease the rate of interest (including any commitment fees) payable in respect thereof without the consent of such Defaulting Lender;
(cd) if If any Swingline Exposure or Letter of Credit Exposure Usage exists at the time a Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Letter of Credit Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the proviso below, automatically Usage shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Non-Lenders that are not Defaulting Lenders pro rata in accordance with their respective Revolving Credit Commitment Percentage; provided Percentages but, in any case, only to the extent the sum of the Outstanding Revolving Obligations of all Lenders that (A) each Non-are not Defaulting Lenders plus such Defaulting Lender’s Revolving Credit Exposure may not ratable participation in any event exceed the Revolving Credit Commitment of such Non-Defaulting Lender as in effect at the time of such reallocation and (B) subject to Section 13.21, neither such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the all Letter of Credit Issuer, Usage does not exceed the Swingline Lender or any other Lender may have against such total of the Revolving Commitments of all Lenders that are not Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, Lenders;
(ii) to if the extent that all or any portion reallocation described in clause (the “unreallocated portion”i) of the Defaulting Lender’s Letter of Credit Exposure and Swingline Exposure above cannot, or can only partially, be so reallocated to Non-Defaulting Lenderseffected, whether by reason of the first proviso in Section 2.16(c)(i) above or otherwise, the Borrower shall within two one Business Days Day following notice by the Administrative Agent Agent, either (x) first, prepay cash collateralize such Swingline Exposure Defaulting Lender’s participation in all Letter of Credit Usage (after giving pro forma effect to any partial reallocation pursuant to clause (i) above) and (y) second, Cash Collateralize such Defaulting Lender’s in a Letter of Credit Exposure (after giving pro forma effect to any partial reallocation pursuant to clause (i) above), in accordance with the procedures set forth in Section 3.8 Cash Collateral Account for so long as such Letter of Credit Exposure is outstanding, outstanding or (y) backstop such Letter of Credit Usage with a letter of credit reasonably satisfactory to the Issuing Lender;
(iii) if the Borrower Cash Collateralizes cash collateralizes or backstops any portion of such Defaulting Lender’s Letter of Credit Exposure Usage pursuant to the requirements of this Section 2.16(csubsection (d), the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c2.03(j) with respect to such Defaulting Lender’s Letter of Credit Exposure Usage during the period such Defaulting Lender’s Letter of Credit Exposure Usage is Cash Collateralized, cash collateralized or backstopped;
(iv) if the Letter of Credit Exposure of Usage attributable to the Non-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(csubsection (d), then the fees payable to the non-Defaulting Lenders pursuant to Section 4.1(c2.03(j) and Section 2.10(a) shall be adjusted in accordance with such Nonthe non-Defaulting Lenders’ respective Revolving Credit Commitment Percentages and the Borrower shall not be required to pay any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to account for such Defaulting Lender’s Letter of Credit Exposure during the period that such Defaulting Lender’s Letter of Credit Exposure is reallocated, or reallocation; and
(v) if any Defaulting Lender’s participation in all Letter of Credit Exposure Usage is neither Cash Collateralized cash collateralized, backstopped nor reallocated pursuant to the requirements of this Section 2.16(csubsection (d), then, without prejudice to any rights or remedies of the Letter of Credit Issuer Issuing Lenders or any Lender hereunder, all Letter of Credit fees payable under Section 4.1(c2.03(j) with respect to such Defaulting Lender’s remaining participation in all Letter of Credit Exposure Usage shall be payable to the applicable Issuing Lenders until such participation in all Letter of Credit Issuer until Usage is backstopped, cash collateralized and/or reallocated
(e) 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 Commitments of the non-Defaulting Lenders and/or cash collateral or backstop letters of credit will be provided by Borrower in accordance with subsection (d) of this Section, and participating interests in any such newly issued or increased Letter of Credit Exposure is Cash Collateralized and/or reallocated;shall be allocated among non-Defaulting Lenders that are Lenders in a manner consistent with subsection (d)(i) of this Section (and Defaulting Lenders shall not participate therein).
(df) (i) In the event that each of Administrative Agent, Borrower and Issuing Lenders agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Letter of Credit Issuer will not Usage of the Lenders shall be required readjusted to issue any new Letter reflect the inclusion of Credit or amend any outstanding Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry such formerly Defaulting Lender’s Revolving Commitment and on such date thereof, unless the Letter of Credit Issuer is reasonably satisfied that any exposure that would result from the exposure to such formerly Defaulting Lender is eliminated or fully covered by shall purchase at par such of the Revolving Credit Commitments Loans of the Non-other Lenders as Administrative Agent shall determine may be necessary in order for such formerly Defaulting Lenders or by Cash Collateralization or a combination thereof Lender to hold such Revolving Loans in accordance with the requirements of Section 2.16(c) above or otherwise in a manner reasonably satisfactory to the Letter of Credit Issuer; andits Revolving Percentage.
Appears in 3 contracts
Sources: Credit Agreement, Credit Agreement (NBCUniversal Media, LLC), Credit Agreement (Comcast Corp)
Defaulting Lenders. 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 Commitment of such Defaulting Lender pursuant to Section 4.1(a);
(b) the Commitment of and the Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders or any other requisite Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 13.1); provided that (i) 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 (ii) the Commitment of any Defaulting Lender may not be increased or extended without the consent of such Lender;
(c) if any Swingline Exposure or Letter of Credit Exposure exists at the time a Lender becomes a Defaulting Lender, then (i) all or any part of such Letter of Credit Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the proviso below, automatically be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Non-Defaulting Lenders pro rata in accordance with their respective Revolving Credit Commitment PercentagePercentage of the applicable Class of Revolving Credit Commitments; provided that (A) each Non-Defaulting Lender’s Revolving Credit Exposure may not in any event exceed the Revolving Credit Commitment of such Non-Defaulting Lender as in effect at the time of such reallocation and (B) subject to Section 13.21, neither such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the any Letter of Credit Issuer, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, (ii) to the extent that all or any portion (the “unreallocated portion”) of the Defaulting Lender’s Letter of Credit Exposure and Swingline Exposure cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(c)(i) above or otherwise, the Borrower shall within two Business Days following notice by the Administrative Agent (x) first, prepay such Swingline Exposure (after giving pro forma 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 pro forma effect to any partial reallocation pursuant to clause (i) above), in accordance with the procedures set forth in Section 3.8 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 the requirements of this Section 2.16(c), the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c) with respect to such Defaulting Lender’s 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 the requirements of this Section 2.16(c), then the fees payable to the Lenders pursuant to Section 4.1(c) shall be adjusted in accordance with such Non-Defaulting Lenders’ Revolving Credit Commitment Percentages of the applicable Class of Revolving Credit Commitments and the Borrower shall not be required to pay any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to such Defaulting Lender’s Letter of Credit Exposure during the period that such Defaulting Lender’s Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Letter of Credit Exposure is neither Cash Collateralized nor reallocated pursuant to the requirements of this Section 2.16(c), then, without prejudice to any rights or remedies of the any Letter of Credit Issuer or any Lender hereunder, all fees payable under Section 4.1(c) with respect to such Defaulting Lender’s Letter of Credit Exposure shall be payable to the applicable Letter of Credit Issuer until such Letter of Credit Exposure is Cash Collateralized and/or reallocated;
(d) (i) the Letter of Credit Issuer Issuers will not be required to issue any new Letter of Credit or amend any outstanding Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the such Letter of Credit Issuer is reasonably satisfied that any exposure that would result from the exposure to such Defaulting Lender is eliminated or fully covered by the Revolving Credit Commitments of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof in accordance with the requirements of Section 2.16(c) above or otherwise in a manner reasonably satisfactory to the such Letter of Credit Issuer; and
Appears in 3 contracts
Sources: Credit Agreement (MultiPlan Corp), Credit Agreement (MultiPlan Corp), Credit Agreement (Snap One Holdings Corp.)
Defaulting Lenders. 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 Commitment of such Defaulting Lender pursuant to Section 4.1(a);
(b) the Commitment of and the Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders or any other requisite Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 13.1); provided that (i) 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 (ii) the Commitment of any Defaulting Lender may not be increased or extended without the consent of such Lender;
(c) if any Swingline Exposure or Existing Letter of Credit Exposure exists at the time a Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Letter of Credit Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the proviso below, automatically be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Non-Defaulting Lenders pro rata in accordance with their respective Revolving Credit Commitment Percentage; provided that (A) each Non-Defaulting Lender’s Revolving Credit Exposure may not in any event exceed the Revolving Credit Commitment of such Non-Defaulting Lender as in effect at the time of such reallocation and (B) subject to Section 13.21, neither such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Letter of Credit Issuer, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, (ii) to the extent that all or any portion (the “unreallocated portion”) of the Defaulting Lender’s Letter of Credit Exposure and Swingline Exposure cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(c)(i) above or otherwise, the Borrower shall shall, within two one Business Days Day following notice by the Administrative Agent (x) firstAgent, prepay such Swingline Exposure (after giving pro forma effect cash collateralize in a manner reasonably satisfactory to any partial reallocation pursuant to clause (i) above) and (y) second, Cash Collateralize the applicable Issuing Lender such Defaulting Lender’s Existing Letter of Credit Exposure (after giving pro forma effect in an aggregate amount equal to any partial reallocation pursuant to clause (i) above), in accordance with the procedures set forth in Section 3.8 100% of such Defaulting Lender’s Existing Letter of Credit Exposure for so long as such Existing Letter of Credit Exposure is outstanding, outstanding (iii) if the Borrower Cash Collateralizes any portion of such Defaulting Lender’s “Existing Letter of Credit Exposure pursuant to the requirements of this Section 2.16(cBack-Stop Arrangements”), ;
(ii) the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c4.01(a) with respect to such Defaulting Lender’s Existing Letter of Credit Exposure during the period such Defaulting Lender’s Letter of Credit Exposure is Cash Collateralized, Exposure; and
(iv) if the Letter of Credit Exposure of the Non-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(c), then the fees payable to the Lenders pursuant to Section 4.1(c) shall be adjusted in accordance with such Non-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to such Defaulting Lender’s Letter of Credit Exposure during the period that such Defaulting Lender’s Letter of Credit Exposure is reallocated, or (viii) if any Defaulting Lender’s Existing Letter of Credit Exposure is neither Cash Collateralized nor reallocated not cash collateralized pursuant to the requirements of this Section 2.16(c2.13(a), then, without prejudice to any rights or remedies of the Letter of Credit Issuer any Issuing Lender or any Lender hereunder, all fees Existing Letter of Credit Fees payable under Section 4.1(c4.01(a) with respect to such Defaulting Lender’s Existing Letter of Credit Exposure shall be payable to the Letter of Credit Issuer each Issuing Lender until such Existing Letter of Credit Exposure is Cash Collateralized cash collateralized and/or reallocated;; and
(db) (i) notwithstanding anything to the contrary contained in Section 2.01 or Section 3, so long as any Lender is a Defaulting Lender, no Issuing Lender shall be required to amend or renew any Existing Letter of Credit. In the event that the Administrative Agent, the Borrower and each Issuing Lender each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then so long as no Event of Default then exists, all funds held as cash collateral pursuant to the Existing Letter of Credit Issuer will not Back-Stop Arrangements shall thereafter be required promptly returned to issue any new the Borrower. If the Loans and all other Obligations have been paid in full and no Existing Letters of Credit are outstanding, then all funds held as cash collateral pursuant to the Existing Letter of Credit or amend any outstanding Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the Letter of Credit Issuer is reasonably satisfied that any exposure that would result from the exposure to such Defaulting Lender is eliminated or fully covered by the Revolving Credit Commitments of the NonBack-Defaulting Lenders or by Cash Collateralization or a combination thereof in accordance with the requirements of Section 2.16(c) above or otherwise in a manner reasonably satisfactory Stop Arrangements shall thereafter be returned to the Letter of Credit Issuer; andBorrower as promptly as practicable.
Appears in 3 contracts
Sources: Credit Agreement (Gener8 Maritime, Inc.), Credit Agreement (Gener8 Maritime, Inc.), Credit Agreement (General Maritime Corp / MI)
Defaulting Lenders. 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 The Commitment Fee shall cease to accrue on the unfunded portion any of the Commitment Revolving Credit Commitments of such Defaulting Lender pursuant to Section 4.1(a2.09(a);
(b) the Commitment Commitment, Outstanding Amount of Term Loans and the Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders or any other requisite Lenders have taken or may take any action hereunder (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 13.110.01); provided that (i) any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than disproportionately when compared to the other affected Lenders Lenders, or increases or extends the Commitment of such Defaulting Lender, shall require the consent of such Defaulting Lender and (ii) the Commitment of any Defaulting Lender may not be increased or extended without the consent of such Lender;
(c) if any Swingline Exposure Swing Line Obligations or Letter of Credit Exposure exists L/C Obligations exist at the time a such Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Letter of Credit Exposure the Swing Line Obligations or L/C Obligations of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata in accordance with their respective Pro Rata Shares but only to the extent the sum of all non-Defaulting Lenders’ Revolving Credit Commitment Percentage; provided that (A) each Non-Exposures plus such Defaulting Lender’s Revolving Credit Exposure may Swing Line Obligations and L/C Obligations does not in any event exceed the Revolving Credit Commitment total of such Nonall non-Defaulting Lender as in effect at the time of such reallocation and (B) subject to Section 13.21, neither such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Letter of Credit Issuer, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, Lenders’ Commitments;
(ii) to if the extent that all or any portion reallocation described in clause (the “unreallocated portion”i) of the Defaulting Lender’s Letter of Credit Exposure and Swingline Exposure above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(c)(i) above or otherwiseeffected, the Borrower Borrowers shall within two three (3) Business Days following notice by the Administrative Agent (x) first, prepay such Swingline Exposure Swing Line Obligations and (y) second, Cash Collateralize for the benefit of the L/C Issuer only the Borrowers’ obligations corresponding to such Defaulting Lender’s L/C Obligations (after giving pro forma 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 pro forma effect to any partial reallocation pursuant to clause (i) above), in accordance with the procedures set forth in Section 3.8 2.03(f) for so long as such Letter of Credit Exposure is L/C Obligations are outstanding, ;
(iii) if the Borrower Borrowers Cash Collateralizes Collateralize any portion of such Defaulting Lender’s Letter of Credit Exposure L/C Obligations pursuant to the requirements of this Section 2.16(c)clause (ii) above, the Borrower Borrowers shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c2.03(h) with respect to such Defaulting Lender’s Letter of Credit Exposure L/C Obligations during the period such Defaulting Lender’s Letter of Credit Exposure is L/C Obligations are Cash Collateralized, ;
(iv) if the Letter of Credit Exposure L/C Obligations of the Nonnon-Defaulting Lenders is are reallocated pursuant to the requirements of this Section 2.16(c)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(cSections 2.09(a) and 2.03(h) shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay Pro Rata Shares; and
(v) if all or any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to portion of such Defaulting Lender’s Letter of Credit Exposure during the period that such Defaulting Lender’s Letter of Credit Exposure L/C Obligations is reallocated, neither reallocated nor Cash Collateralized pursuant to clause (i) or (vii) if any Defaulting Lender’s Letter of Credit Exposure is neither Cash Collateralized nor reallocated pursuant to the requirements of this Section 2.16(c)above, then, without prejudice to any rights or remedies of the Letter of Credit L/C Issuer or any other Lender hereunder, all letter of credit fees payable under Section 4.1(c2.03(h) with respect to such Defaulting Lender’s Letter of Credit Exposure L/C Obligations shall be payable to the Letter of Credit L/C Issuer until and to the extent that such Letter of Credit Exposure is L/C Obligations are reallocated and/or Cash Collateralized and/or reallocated;Collateralized; and
(d) (i) so long as such Lender is a Defaulting Lender, the Letter of Credit Issuer will Swing Line Lender shall not be required to issue fund any new Swing Line Loan and the L/C Issuer 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 Borrowers in accordance with Section 2.16(c), and participating interests in any newly made Swing Line Loan or any newly issued or increased Letter of Credit or amend any outstanding Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the Letter of Credit Issuer is reasonably satisfied that any exposure that would result from the exposure to shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.16(c)(i) (and such Defaulting Lender is eliminated or fully covered by shall not participate therein). In the event that the Administrative Agent, the Borrowers, the Swing Line Lender and the L/C Issuer each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swing Line Obligations and L/C Obligations of the Revolving Credit Commitments Lenders shall be readjusted to reflect the inclusion of such Lender’s Revolving Credit Commitment and on such date such Lender shall purchase at par such of the Non-Defaulting Revolving Credit Loans of the other Revolving Credit Lenders or by Cash Collateralization or a combination thereof (other than Swing Line Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Revolving Credit Loans in accordance with the requirements of Section 2.16(c) above or otherwise in a manner reasonably satisfactory to the Letter of Credit Issuer; andits Pro Rata Share.
Appears in 3 contracts
Sources: Credit Agreement (Acelity L.P. Inc.), Credit Agreement (Kinetic Concepts Inc), Credit Agreement (KCI Animal Health, LLC)
Defaulting Lenders. 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, to the extent permitted by applicable law:
(a) (i) fees shall cease to accrue on the unfunded portion of the Revolving Commitment of such a Defaulting Lender, and (ii) no Defaulting Lender shall be entitled to receive any Revolving Commitment fees pursuant to Section 4.1(a2.09(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);
(b) the Commitment of and the Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders or any other requisite Lenders have taken or may take any action hereunder (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 13.111.02); provided that this clause (ib) any waivershall not apply to the vote of a Defaulting Lender in the case of an amendment, amendment waiver or other modification requiring the consent of all Lenders each Lender or each Lender affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lender and (ii) the Commitment of any Defaulting Lender may not be increased or extended without the consent of such Lenderthereby;
(c) if any Swingline Exposure or Letter of Credit Exposure Usage exists at the time a such Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such the Letter of Credit Exposure Usage of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Non-Defaulting Lenders pro rata in accordance with their respective Revolving Credit Commitment Percentage; provided Applicable Percentages but only to the extent that (Ax) each the sum of all Non-Defaulting Lenders’ Revolving Exposures plus such Defaulting Lender’s Letter of Credit Usage does not exceed the total of all Non-Defaulting Lenders’ Revolving Commitments, and (y) the sum of any Non-Defaulting Lender’s Revolving Exposure plus its Pro Rata Share of such Defaulting Lender’s Letter of Credit Exposure may Usage does not in any event exceed the Revolving Credit Commitment of such Non-Defaulting Lender as in effect at the time of such Lender’s Revolving Commitment; provided that no reallocation and (B) subject to Section 13.21, neither such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will hereunder shall constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Letter of Credit Issuer, the Swingline Lender or any other Lender may have party hereunder against such a Defaulting Lender or cause such arising from that Lender having become a Defaulting Lender to be Lender, including any claim of a Non-Defaulting Lender as a result of such Non-Defaulting Lender, ’s increased exposure following such reallocation;
(ii) to if the extent that all or any portion reallocation described in clause (the “unreallocated portion”i) of the Defaulting Lender’s Letter of Credit Exposure and Swingline Exposure above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(c)(i) above or otherwiseeffected, the Borrower shall shall, without prejudice to any right or remedy available to it hereunder or under law, within two one Business Days Day following notice by Administrative Agent, Cash Collateralize for the Administrative Agent (x) first, prepay benefit of each applicable Issuing Bank only the Borrower’s obligations corresponding to such Swingline Exposure Defaulting Lender’s Letter of Credit Usage (after giving pro forma 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 pro forma effect to any partial reallocation pursuant to clause (i) above), in accordance with the procedures set forth in Section 3.8 2.03(i) for so long as such Letter of Credit Exposure Usage is outstanding, ;
(iii) if the Borrower Cash Collateralizes any portion of such Defaulting Lender’s Letter of Credit Exposure Usage pursuant to the requirements of this Section 2.16(c)clause (i) above, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c2.09(a)(ii) with respect to such Defaulting Lender’s Letter of Credit Exposure Usage during the period such Defaulting Lender’s Letter of Credit Exposure Usage is Cash Collateralized, ;
(iv) if the all or any portion of such Defaulting Lender’s Letter of Credit Exposure of the Non-Defaulting Lenders Usage is reallocated pursuant to the requirements of this Section 2.16(c)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(c2.09(a)(i) and Section 2.09(a)(ii) shall be adjusted in accordance with such Non-Defaulting Lenders’ Revolving Applicable Percentages; and
(v) if all or any portion of such Defaulting Lender’s Letter of Credit Commitment Percentages and the Borrower shall not be required to pay any fees to the Defaulting Lender Usage is neither reallocated nor Cash Collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all letter of credit fees payable under Section 4.1(c2.09(a)(ii) with respect to such Defaulting Lender’s Letter of Credit Exposure during the period Usage that such Defaulting Lender’s Letter of Credit Exposure is reallocated, not so reallocated or (v) if any Defaulting Lender’s Letter of Credit Exposure is neither Cash Collateralized nor reallocated pursuant to the requirements of this Section 2.16(c), then, without prejudice to any rights or remedies of the Letter of Credit Issuer or any Lender hereunder, all fees payable under Section 4.1(c) with respect to such Defaulting Lender’s Letter of Credit Exposure shall be payable to the Letter of Credit Issuer applicable Issuing Bank until and to the extent that such Letter of Credit Exposure Usage is reallocated and/or Cash Collateralized and/or reallocated;Collateralized; and
(d) (i) the Letter of Credit Issuer will not so long as such Lender is a Defaulting Lender, no Issuing Bank shall be required to issue issue, amend or increase any new Letter of Credit or amend any Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the Letter of Credit Issuer is reasonably satisfied that any exposure that would result from the exposure to such Defaulting Lender is eliminated or fully Usage will be 100% covered by the Revolving Credit Commitments of the Non-Defaulting Lenders or and/or Cash Collateral will be provided by Cash Collateralization or a combination thereof the Borrower in accordance with the requirements Section 2.22(c)(ii), and participating interests in any newly issued or increased Letter of Section 2.16(c) above or otherwise Credit shall be allocated among Non-Defaulting Lenders in a manner consistent with Section 2.22(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to a holding company of any Lender shall occur following the date hereof and for so long as such event shall continue or (ii) an 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, the applicable Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless such Issuing Bank shall have entered into arrangements with the Borrower or such Lender, reasonably satisfactory to such Issuing Bank to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the Borrower and each of 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 Letter of Credit Issuer; andUsage 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 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 Applicable Percentage.
Appears in 3 contracts
Sources: Revolving Credit and Guaranty Agreement (Compass, Inc.), Revolving Credit and Guaranty Agreement (Blue Apron Holdings, Inc.), Revolving Credit and Guaranty Agreement (Slack Technologies, Inc.)
Defaulting Lenders. 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 Commitment Commitments of such Defaulting Lender pursuant to Section 4.1(a2.12(a);
(b) the aggregate principal amount of Loans, Revolving L/C Exposures, Swingline Exposures and Available Unused Commitment of and the Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, Required Lenders, Majority Lenders or the Required Lenders or any other requisite affected Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 13.19.08); provided that (i) 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 Lender, (ii) the Commitment of any such Defaulting Lender may not be increased or extended without the consent of such Defaulting Lender and (iii) any amendment that reduces the principal amount of, rate of interest on, or the final maturity of, any Loan made by such Defaulting Lender, shall require the consent of such Defaulting Lender;
(c) if any Swingline Exposure or Letter of Credit Revolving L/C Exposure exists at the time a Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Letter of Credit Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the proviso below, automatically or Revolving L/C Exposure shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata in accordance with their respective Revolving Facility Percentages but only to the extent such reallocation does not cause the aggregate Revolving Facility Credit Commitment Percentage; provided that (A) each NonExposure of any non-Defaulting Lender to exceed such non-Defaulting Lender’s Revolving Credit Exposure may not in any event exceed the Revolving Credit Commitment of such Non-Defaulting Lender as in effect at the time of such reallocation and (B) Facility Commitment; provided that, subject to Section 13.219.24, neither such no reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will hereunder shall constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Letter of Credit Issuer, the Swingline Lender or any other Lender may have party hereunder against such a Defaulting Lender or cause such arising from that Lender having become a Defaulting Lender to be Lender, including any claim of a Non-Defaulting Lender as a result of such Non-Defaulting Lender, ’s increased exposure following such reallocation;
(ii) to if the extent that all or any portion reallocation described in clause (the “unreallocated portion”i) of the Defaulting Lender’s Letter of Credit Exposure and Swingline Exposure above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(c)(i) above or otherwiseeffected, the Borrower shall within two five Business Days following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize such Defaulting Lender’s Revolving L/C Exposure (after giving pro forma 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 pro forma effect to any partial reallocation pursuant to clause (i) above), in accordance with the procedures set forth in Section 3.8 2.05(j) for so long as such Letter of Credit Revolving L/C Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s Letter of Credit Revolving L/C Exposure pursuant to the requirements of this Section 2.16(c2.22(c)(ii)(y), the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c) 2.12 with respect to such Defaulting Lender’s Letter of Credit Revolving L/C Exposure during the period such Defaulting Lender’s Letter of Credit Revolving L/C Exposure is Cash Collateralized, cash collateralized;
(iv) if the Letter of Credit Swingline Exposure or Revolving L/C Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(c2.22(c)(i), then the fees payable to the Lenders pursuant to Section 4.1(c) 2.12 shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to such Defaulting Lender’s Letter of Credit Exposure during the period that such Defaulting Lender’s Letter of Credit Exposure is reallocated, or Facility Percentage; and
(v) if any Defaulting Lender’s Letter of Credit Revolving L/C Exposure is neither Cash Collateralized cash collateralized nor reallocated pursuant to the requirements of this Section 2.16(c2.22(c)(i) or (ii), then, without prejudice to any rights or remedies of the Letter of Credit Issuer Issuing Bank or any 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 Revolving L/C Commitment that was utilized by such Revolving L/C Exposure) and all Revolving L/C Participation Fees payable under Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Letter of Credit Revolving L/C Exposure shall be payable to the Letter of Credit Issuer applicable Issuing Bank until such Letter of Credit Exposure Revolving L/C exposure is Cash Collateralized and/or cash collateralized and / or reallocated;
(d) (i) the Letter of Credit Issuer will not so long as any Lender is a Defaulting Lender, no Swingline Lender shall be required to issue fund any new Swingline Loan and no Issuing Bank shall be required to issue, amend or increase any Revolving Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Revolving Facility Commitments of the non-Defaulting Lenders or cash collateral will be provided by the Borrower in accordance with Section 2.22(c), and participating interests in any such newly issued or increased Revolving Letter of Credit or amend newly made Swingline Loan shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.22(c)(i) (and Defaulting Lenders shall not participate therein); and
(e) Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of such Defaulting Lender shall be applied at such time or times as may be determined by the Administrative Agent as follows: (i) first, to the payment of any outstanding amounts owing by such Defaulting Lender to the Administrative Agent hereunder, (ii) second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Issuing Bank or Swingline Lender, (iii) third, as the Borrower may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which that Defaulting Lender has failed to fund its portion thereof as required by this Agreement, (iv) fourth, if so determined by the Administrative Agent or requested by an Issuing Bank 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 Revolving Letter of Credit Credit, (v) fifth, to increase the face amount thereofpayment of any amounts owing to the Lenders or an Issuing Bank or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender or such Issuing Bank or Swingline Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, alter (vi) sixth, so long as no Default or Event of Default exists, to the drawing terms thereunder or extend payment of any amounts owing to the expiry date thereofBorrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against that Defaulting Lender as a result of that Defaulting Lender’s breach of its obligations under this Agreement and (vii) seventh, unless the Letter of Credit Issuer is reasonably satisfied that any exposure that would result from the exposure to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction, provided, with respect to this clause (vii), that if such payment is eliminated or fully covered by the Revolving Credit Commitments (x) a prepayment of the Nonprincipal amount of any Loans in respect of which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 2.11 are satisfied, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Lender. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by Cash Collateralization a Defaulting Lender or to post cash collateral pursuant to Section 2.05(j) shall be deemed paid to and redirected by that Defaulting Lender, and each Lender irrevocably consents hereto.
(f) In the event that the Administrative Agent, the Borrower, each Issuing Bank and each Swingline Lender each agrees that a combination thereof 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 the requirements of Section 2.16(c) above or otherwise in a manner reasonably satisfactory to the Letter of Credit Issuer; andits Revolving Facility Percentage.
Appears in 3 contracts
Sources: Credit Agreement (Crestwood Midstream Partners LP), Credit Agreement (Crestwood Equity Partners LP), Amendment (Crestwood Equity Partners LP)
Defaulting Lenders. 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 Commitment Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a);
(b) the The Commitment of and the Revolving Credit Total Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, the Majority Lenders or the Required Lenders or any other requisite Lenders each affected Lender have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 13.1); provided that (i) any waiver, amendment or modification requiring the consent of all Lenders pursuant to Section 13.1 (other than Section 13.1(a)(x)) or requiring the consent of each affected Lender which affects such Defaulting Lender differently than other affected Lenders pursuant to Section 13.1(a)(i) or (ix) shall require the consent of such Defaulting Lender (which for the avoidance of doubt would include any change to the Maturity Date applicable to such Defaulting Lender, decreasing or forgiving any principal or interest due to such Defaulting Lender, any decrease of any interest rate applicable to Loans made by such Defaulting Lender (other than the waiving of post-default interest rates) and any increase in or extension of such Defaulting Lender’s Commitment) and (ii) any redetermination, whether an increase, decrease or affirmation, of the Borrowing Base shall occur without the participation of a Defaulting Lender, but the Commitment (i.e., the Commitment Percentage of any the Borrowing Base) of a Defaulting Lender may not be increased or extended without the consent of such Defaulting Lender;
(c) if If any Swingline Exposure or Letter of Credit Exposure exists at the time a Lender becomes a Defaulting Lender, then (i) all or any part of such Letter of Credit Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Non-Defaulting Lenders pro rata in accordance with their respective Revolving Credit Commitment PercentagePercentages; provided that (A) each Non-Defaulting Lender’s Revolving Credit Total Exposure may not in any event exceed the Revolving Credit Commitment Percentage of the Commitment of such Non-Defaulting Lender as in effect at the time of such reallocation and (B) subject to Section 13.21, neither such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Letter of Credit Issuer, the Swingline Lender Issuing Banks or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, (ii) to the extent that all or any portion (the “unreallocated portion”) of the Defaulting Lender’s Letter of Credit Exposure and Swingline Exposure cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(c)(i2.15(c)(i) above or otherwise, the Borrower shall within two (2) Business Days following notice by the Administrative Agent (x) first, prepay such Swingline Exposure (after giving pro forma effect to any partial reallocation pursuant to clause (i) above) and (y) second, Cash Collateralize for the benefit of the applicable Issuing Bank only the Borrower’s obligations corresponding to such Defaulting Lender’s Letter of Credit Exposure (after giving pro forma effect to any partial reallocation pursuant to clause (i) above), in accordance with the procedures set forth in Section 3.8 3.7 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 the requirements of this Section 2.16(c2.15(c), the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c4.1(b) with respect to such Defaulting Lender’s Letter of Credit Exposure during the period such Defaulting Lender’s Letter of Credit Exposure is Cash CollateralizedCollateralized (and such fees shall be payable to the Issuing Banks), (iv) if the Letter of Credit Exposure of the Non-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(c2.15(c), then the fees Letter of Credit Fees payable to for the account of the Lenders pursuant to Section 4.1(c4.1(b) shall be adjusted in accordance with such Non-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay any fees Letter of Credit Fees to the Defaulting Lender pursuant to Section 4.1(c4.1(b) with respect to such Defaulting Lender’s Letter of Credit Exposure during the period that such Defaulting Lender’s Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Letter of Credit Exposure is neither Cash Collateralized nor reallocated pursuant to the requirements of this Section 2.16(c2.15(c), then, without prejudice to any rights or remedies of the Letter of Credit Issuer any Issuing Bank or any Lender hereunder, all fees Letter of Credit Fees payable under Section 4.1(c4.1(b) with respect to such Defaulting Lender’s Letter of Credit Exposure shall be payable to the Letter of Credit Issuer such Issuing Bank until such Letter of Credit Exposure is Cash Collateralized and/or reallocated;
(d) (i) the Letter of Credit Issuer So long as any Lender is a Defaulting Lender, no Issuing Bank will not be required to issue any new Letter of Credit or amend any outstanding Letter of Credit to increase the face amount Stated Amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the Letter of Credit Issuer each Issuing Bank is reasonably satisfied that any exposure that would result from the exposure to such Defaulting Lender is eliminated or fully covered by the Revolving Credit Commitments of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof in accordance with the requirements of Section 2.16(cclause (c) above or otherwise in a manner reasonably satisfactory to the such Issuing Bank, and participating interests in any such newly issued or increased Letter of Credit Issuershall be allocated among Non-Defaulting Lenders in a manner consistent with Section 2.15(c)(i) (and Defaulting Lenders shall not participate therein);
(e) If the Borrower, the Administrative Agent and each Issuing Bank agree in writing in their discretion that a Lender that is a Defaulting Lender should no longer be deemed to be a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon, as of the effective date specified in such notice and subject to any conditions set forth therein, such Lender will cease to be a Defaulting Lender and will be a Non-Defaulting Lender and any applicable Cash Collateral shall be promptly returned to the Borrower and any Letter of Credit Exposure of such Lender reallocated pursuant to Section 2.15(c) shall be reallocated back to such Lender; provided that, except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Non-Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from such ▇▇▇▇▇▇’s having been a Defaulting Lender; and
(f) Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of that Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Section 11 or otherwise, and including any amounts made available to the Administrative Agent by that Defaulting Lender pursuant to Section 13.8), 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 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 each Issuing Bank hereunder; third, as the Borrower may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which that Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fourth, if so determined by the Administrative Agent and the Borrower, to be held in a non-interest bearing deposit account and released in order to satisfy obligations of that Defaulting Lender to fund Loans under this Agreement; fifth, to the payment of any amounts owing to the Lenders, each Issuing Bank as a result of any final judgment of a court of competent jurisdiction obtained by any Lender, such Issuing Bank against that Defaulting Lender as a result of that Defaulting Lender’s breach of its obligations under this Agreement; sixth, 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 final judgment of a court of competent jurisdiction obtained by the Borrower against that Defaulting Lender as a result of that Defaulting Lender’s breach of its obligations under this Agreement; and seventh, to that Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is a payment of the principal amount of any Loans or Unpaid Drawings, such payment shall be applied solely to pay the relevant Loans of, and Unpaid Drawings owed to, the relevant non-Defaulting Lenders on a pro rata basis prior to being applied in the manner set forth in this Section 2.15(f). 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 Section 3.7 shall be deemed paid to and redirected by that Defaulting Lender, and each Lender irrevocably consents hereto.
Appears in 3 contracts
Sources: Credit Agreement (Infinity Natural Resources, Inc.), Credit Agreement (Infinity Natural Resources, Inc.), Credit Agreement (California Resources Corp)
Defaulting Lenders. 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 Loan Commitment of such Defaulting Lender pursuant to Section 4.1(a2.5(a);
(b) the Commitment of and the Revolving Loan Commitment, Outstanding Revolving Credit Exposure Exposure, Term Loan Commitment and outstanding Term Loans of such Defaulting Lender shall not be included in determining whether all the Required Revolving Lenders or the Required Lenders or any other requisite Lenders have taken or may take any action hereunder (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 13.18.2); provided provided, that (i) 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 (ii) the Lender’s Revolving Loan Commitment of any Defaulting Lender or Term Loan Commitment may not be increased or extended without its consent and (ii) the consent principal amount of, or interest or fees payable on, Loans or Reimbursement Obligations 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 Swing Line Exposure or Letter of Credit Exposure exists LC Obligations exist at the time a such Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Letter of Credit the Swing Line Exposure and LC Obligations of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata in accordance with their respective Revolving Loan Pro Rata Shares but only to the extent the sum of all non-Defaulting Lenders’ Outstanding Revolving Credit Commitment Percentage; provided that (A) each Non-Exposures plus such Defaulting Lender’s Revolving Credit Swing Line Exposure may and LC Obligations does not in any event exceed the Revolving Credit Commitment total of such Nonall non-Defaulting Lender as in effect at the time of such reallocation and (B) subject to Section 13.21, neither such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Letter of Credit Issuer, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, Lenders’ Revolving Loan Commitments;
(ii) to if the extent that all or any portion reallocation described in clause (the “unreallocated portion”i) of the Defaulting Lender’s Letter of Credit Exposure and Swingline Exposure above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(c)(i) above or otherwiseeffected, the Borrower Company shall within two one (1) Business Days Day following notice by the Administrative Agent (x) first, prepay such Swingline Swing Line Exposure and (y) second, cash collateralize for the benefit of the LC Issuer only the Company’s obligations corresponding to such Defaulting Lender’s LC Obligations (after giving pro forma 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 pro forma effect to any partial reallocation pursuant to clause (i) above), in accordance with the procedures set forth in Section 3.8 8.1 for so long as such Letter of Credit Exposure is LC Obligations are outstanding, ;
(iii) if the Borrower Cash Collateralizes Company cash collateralizes any portion of such Defaulting Lender’s Letter of Credit Exposure LC Obligations pursuant to the requirements of this Section 2.16(c)clause (ii) above, the Borrower Company shall not be required to pay any letter of credit fees to such Defaulting Lender pursuant to Section 4.1(c) 2.19.4 with respect to such Defaulting Lender’s Letter of Credit Exposure LC Obligations during the period such Defaulting Lender’s Letter of Credit Exposure is Cash Collateralized, LC Obligations are cash collateralized;
(iv) if the Letter of Credit Exposure LC Obligations of the Nonnon-Defaulting Lenders is are reallocated pursuant to the requirements of this Section 2.16(c)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(c2.5(a) and Section 2.19.4 shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay Loan Pro Rata Shares; and
(v) if all or any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to portion of such Defaulting Lender’s Letter of Credit Exposure during the period that such Defaulting Lender’s Letter of Credit Exposure LC Obligations is reallocated, neither reallocated nor cash collateralized pursuant to clause (i) or (vii) if any Defaulting Lender’s Letter of Credit Exposure is neither Cash Collateralized nor reallocated pursuant to the requirements of this Section 2.16(c)above, then, without prejudice to any rights or remedies of the Letter of Credit LC Issuer or any other Lender hereunder, all letter of credit fees payable under Section 4.1(c) 2.19.4 with respect to such Defaulting Lender’s Letter of Credit Exposure LC Obligations shall be payable to the Letter of Credit LC Issuer until and to the extent that such Letter of Credit Exposure is Cash Collateralized LC Obligations are reallocated and/or reallocated;cash collateralized; and
(d) (i) so long as such Lender is a Defaulting Lender, the Letter of Credit Swing Line Lender shall not be required to fund any Swing Line Loan and the LC Issuer will shall not be required to issue or Modify any new Letter of Credit or amend any outstanding Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereofFacility LC, unless the Letter of Credit Issuer it is reasonably satisfied that any the related exposure that would result from and the exposure to such Defaulting Lender is eliminated or fully Lender’s then outstanding LC Obligations will be 100% covered by the Revolving Credit Loan Commitments of the Nonnon-Defaulting Lenders or and/or cash collateral will be provided by Cash Collateralization or a combination thereof the Company in accordance with the requirements of Section 2.16(c) above 2.21(c), and participating interests in any newly made Swing Line Loan or otherwise any newly issued or increased Facility LC shall be allocated among non-Defaulting Lenders in a manner reasonably consistent with Section 2.21(c)(i) (and such Defaulting Lender shall 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) the Swing Line Lender or the LC Issuer 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 LC Issuer shall not be required to issue or Modify any Facility LC, unless the Swing Line Lender or the LC Issuer, as the case may be, shall have entered into arrangements with the Company or such Lender, satisfactory to the Letter Swing Line Lender or the LC Issuer, as the case may be, to defease any risk to it in respect of Credit Issuer; andsuch Lender hereunder. In the event that the Agent, the Company, the LC Issuer and the Swing Line Lender each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swing Line Exposure and LC Obligations of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Revolving Loan Commitment and on such date such Lender shall purchase at par such of the Revolving Loans of the other Lenders as the Agent shall determine may be necessary in order for such Lender to hold such Loans in each Agreed Currency of each Borrower in accordance with its Revolving Loan Pro Rata Share. Nothing contained in the foregoing shall be deemed to constitute a waiver by any Borrower of any of its rights or remedies (whether in equity or law) against any Lender which fails to fund any of its Loans hereunder at the time or in the amount required to be funded under the terms of this Agreement.
Appears in 3 contracts
Sources: Credit Agreement (Actuant Corp), Credit Agreement (Actuant Corp), Credit Agreement (Actuant Corp)
Defaulting Lenders. 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) such Defaulting Lender will not be entitled to any fees shall cease accruing during such period pursuant to accrue Section 2.11(a) or 2.11(b) (without prejudice to the rights of the Lenders other than Defaulting Lenders in respect of such fees);
(b) such Lender will not, to the fullest extent permitted by applicable law, be entitled to vote in respect of amendments and waivers hereunder and the Commitment and the outstanding Loans or other extensions of credit of such Lender hereunder will not be taken into account in determining whether the Required Lenders or all of the Lenders, as required, have approved any such amendment or waiver (and the definition of “Required Lenders” will automatically be deemed modified accordingly for the duration of such period); provided that any such amendment or waiver that would (i) increase or extend the term of the Commitment of such Defaulting Lender, (ii) extend the date fixed for the payment of principal or interest owing to such Defaulting Lender hereunder, (iii) reduce the principal amount of any obligation owing to such Defaulting Lender, (iv) reduce the amount of or the rate of interest on any amount owing to such Defaulting Lender or of any fee payable to such Defaulting Lender hereunder or (v) alter the unfunded portion terms of this proviso, will continue to require the consent of such Defaulting Lender;
(c) the Borrower may irrevocably terminate the unused amount of the Commitment of such Defaulting Lender pursuant upon not less than three Business Days’ prior notice to Section 4.1(athe Administrative Agent (which will promptly notify the Lenders thereof);
(b) . Such termination shall be effective, with respect to such Defaulting Lender’s then existing unused Commitments, on the date set forth in such notice and, with respect to any unused Commitment thereafter arising, on the later of the date set forth in such notice and the Revolving Credit Exposure date on which such unused Commitment first arises (and no commitment fee will be payable in respect of such unused Commitment terminated on the date it arises). Upon termination of such Defaulting Lender’s unused Commitments under this Section 2.22(b), the Borrower shall pay or cause to be paid all accrued commitment fees payable to, and all other amounts owing to, such Defaulting Lender under this Agreement. Upon such payment, the obligations of such Defaulting Lender hereunder with respect to such terminated Commitments shall not be included in determining whether all Lenders or the Required Lenders or any other requisite Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 13.1)released and discharged; provided provided, however, that (i) 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 Lender’s rights and obligations provided in Section 9.05 with respect to such terminated Commitments shall require the consent of survive such Defaulting Lender release and (ii) the Commitment of any Defaulting Lender may not be increased or extended without the consent of discharge as to matters occurring prior to such Lenderdate;
(cd) if any Swingline LC Exposure or Letter of Credit Swingline Exposure exists at the time a Lender becomes is a Defaulting Lender, then :
(i) all such LC Exposure or any part of such Letter of Credit Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the proviso below, will automatically be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Non-Defaulting Lenders on a pro rata basis in accordance with their respective Revolving Credit Commitments (without giving effect to the Commitment Percentageof such Defaulting Lender); provided that (A) each no Non-Defaulting Lender’s Revolving Credit Exposure may not in any event exceed the Revolving Credit its Commitment of such Non-Defaulting Lender as in effect at the time of such reallocation and (B) subject to Section 13.21, neither such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim the Borrowerany Loan Party, the Administrative Agent, the Letter of Credit Issuerany Issuing Bank, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, ; and
(ii) to the extent that all or any portion (the “unreallocated portion”) of the Defaulting Lender’s Letter of Credit LC Exposure and or Swingline Exposure cannot, or can only partially, not be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(c)(iclause (i) above or otherwise, the Borrower shall within two will, not later than three Business Days following notice after demand therefor by the Administrative Agent (xat the direction of any Issuing Bank or the Swingline Lender), (A) firstCash Collateralize in full its obligations to the Issuing Banks in respect of the unreallocated portion of such LC Exposure, (B) prepay in full its obligations to the Swingline Lender in respect of the unreallocated portion of such Swingline Exposure or (after giving pro forma effect C) make other arrangements reasonably satisfactory to the Administrative Agent and to the Issuing Banks and the Swingline Lender in their sole discretion to protect them against the risk of non-payment by such Defaulting Lender; and
(iii) to the extent the unreallocated portion of any partial reallocation LC Exposure is Cash Collateralized pursuant to clause (ii) above, such Cash Collateral will be applied to reimburse the relevant Issuing Bank for the portion of any LC Disbursement to which such unreallocated portion relates and, to the extent the remaining portion of such LC Disbursement shall not be reimbursed by the Borrower in accordance with Section 2.05(f), the Non-Defaulting Lenders will be required pursuant to Section 2.05(f) to fund participations therein in accordance with clause (i) above;
(e) and (y) secondno Issuing Bank shall be required to issue, Cash Collateralize such Defaulting Lender’s amend or increase any Letter of Credit Exposure (after giving pro forma effect to any partial reallocation pursuant to clause (i) above)Credit, in accordance with and the procedures set forth in Section 3.8 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 the requirements of this Section 2.16(c), the Borrower Swingline Lender shall not be required to pay fund any fees Swingline Loan, unless such Issuing Bank or the Swingline Lender is satisfied that any LC Exposure or Swingline Exposure that would result therefrom is fully covered or eliminated by any combination reasonably satisfactory to such Issuing Bank or the Swingline Lender, as applicable, of the arrangements set forth in clauses (d)(i) and (d)(ii) above;
(f) in furtherance of the foregoing, if any Lender becomes, and during the period it remains, a Defaulting Lender, the Swingline Lender is hereby authorized by the Borrower (which authorization is irrevocable and coupled with an interest) to give, in its discretion, through the Administrative Agent, Borrowing Requests pursuant to Section 2.03 in such amounts and in such times as may be required to repay an outstanding Swingline Loan; and
(g) any amount paid by the Borrower for the account of such Defaulting Lender pursuant in its capacity as a Lender under this Agreement (whether on account of principal, interest, fees, indemnity payments or other amounts) will be applied to Section 4.1(c) with respect the payment of all amounts then due and payable by such Defaulting Lender under this Agreement until such amounts are paid in full and then will be paid to such Defaulting Lender’s Letter . The application of payments as described in the preceding sentence shall not result in a Default, and a Defaulting Lender may not charge any overdue or penalty interest on any amount owed to it that is not paid as a result of such application. If the Borrower, the Administrative Agent, each Issuing Bank and the Swingline Lender agree in writing in their discretion that a Lender that is a Defaulting Lender should no longer be deemed to be a Defaulting Lender, the Administrative Agent will so notify the parties hereto, and as of the effective date specified in such notice and subject to any conditions set forth therein, such Lender will, to the extent applicable, purchase such portion of the outstanding Loans or participations in Letters of Credit Exposure during and Swingline Loans of the period other Lenders or make such Defaulting Lender’s Letter of Credit Exposure is Cash Collateralized, (iv) if other adjustments as the Letter of Administrative Agent may determine to be necessary to cause the Credit Exposure of the Lenders to be on a pro rata basis in accordance with their respective Commitments, and such Lender will cease to be a Defaulting Lender and will become a Non-Defaulting Lenders is reallocated pursuant Lender (and the Credit Exposure of each Lender will automatically be adjusted on a prospective basis to reflect the foregoing); provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while such Lender was a Defaulting Lender; provided further that except to the requirements of this Section 2.16(c)extent otherwise expressly agreed by the affected parties, then the fees payable no change hereunder from a Defaulting Lender to the Lenders pursuant to Section 4.1(c) shall be adjusted in accordance with such a Non-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay Lender will constitute a waiver or release of any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to claim of any party hereunder arising from such Lender’s having been a Defaulting Lender’s Letter . The parties agree that this Section 2.22 does not violate any of Credit Exposure during the period that such Defaulting Lender’s Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Letter of Credit Exposure is neither Cash Collateralized nor reallocated pursuant to the requirements pro rata provisions of this Section 2.16(c), then, without prejudice to any rights or remedies of the Letter of Credit Issuer or any Lender hereunder, all fees payable under Section 4.1(c) with respect to 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;
(d) (i) the Letter of Credit Issuer will not be required to issue any new Letter of Credit or amend any outstanding Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the Letter of Credit Issuer is reasonably satisfied that any exposure that would result from the exposure to such Defaulting Lender is eliminated or fully covered by the Revolving Credit Commitments of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof in accordance with the requirements of Section 2.16(c) above or otherwise in a manner reasonably satisfactory to the Letter of Credit Issuer; andAgreement.
Appears in 3 contracts
Sources: Credit Agreement (Blackstone Group L.P.), Credit Agreement (Blackstone Group L.P.), Credit Agreement (Blackstone Group L.P.)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(ai) fees Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a3.05(a);.
(bii) The Commitment, the Commitment of Maximum Credit Amount and the Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders or any other requisite the Majority Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 13.112.02); provided that (i) 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 Lender; and (ii) provided, further, that any redetermination or affirmation of the Borrowing Base shall occur without the participation of a Defaulting Lender, but the Commitment (i.e., the Applicable Percentage of any the Borrowing Base of a Defaulting Lender Lender) may not be increased or extended without the consent of such Lender;
(c) if any Swingline Exposure or Letter of Credit Exposure exists at the time a Lender becomes a Defaulting Lender; provided, then (i) all or any part of such Letter of Credit Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender willthat, subject to the limitation in the proviso belowSection 12.19, automatically be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Non-Defaulting Lenders pro rata in accordance with their respective Revolving Credit Commitment Percentage; provided that (A) each Non-Defaulting Lender’s Revolving Credit Exposure may not in any event exceed the Revolving Credit Commitment of such Non-Defaulting Lender as in effect at the time of no such reallocation and (B) subject to Section 13.21, neither such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Letter of Credit Issuer, the Swingline Lender Issuing Bank or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, .
(iiiii) to If any LC Exposure exists at the extent that time a Lender becomes a Defaulting Lender then:
(A) all or any portion part of the LC Exposure of such Defaulting Lender shall be reallocated among the Non-Defaulting Lenders in accordance with their respective Applicable Percentages (for the “unreallocated portion”) purposes of such reallocation the Defaulting Lender’s Letter Commitment shall be disregarded in determining the Non-Defaulting Lender’s Applicable Percentage) but only to the extent (1) 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’ Commitments and (2) the sum of each Non-Defaulting Lender’s Revolving Credit Exposure and Swingline plus its reallocated share of such Defaulting Lender’s LC Exposure does not exceed such Non-Defaulting Lender’s Commitment; provided further that, subject to Section 12.19, no reallocation hereunder 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;
(B) if the reallocation described in clause (A) above cannot, or can only partially, be so reallocated to Non-Defaulting Lenderseffected, whether by reason of the first proviso in Section 2.16(c)(i) above or otherwise, then the Borrower shall within two one Business Days Day following notice by the Administrative Agent (x) first, prepay cash collateralize for the benefit of the Issuing Bank only the Borrower’s obligations corresponding to such Swingline Defaulting Lender’s LC Exposure (after giving pro forma 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 pro forma effect to any partial reallocation pursuant to clause (iA) above), or otherwise backstop such LC Exposure in such amounts and pursuant to such arrangements as are satisfactory to the Issuing Bank in its sole discretion, in accordance with the procedures set forth in Section 3.8 2.08(j) for so long as such Letter of Credit LC Exposure is outstanding, outstanding and the relevant Defaulting Lender remains a Defaulting Lender;
(iiiC) if the Borrower Cash Collateralizes cash collateralizes or backstops any portion of such Defaulting Lender’s Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(c)clause (B) above, then the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c3.05(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Letter of Credit LC Exposure is Cash Collateralized, cash collateralized or otherwise backstopped;
(ivD) if the Letter of Credit LC Exposure of the Non-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(c)clause (A) above, then the fees payable to the Lenders pursuant to Section 4.1(c3.05(a) and Section 3.05(b) shall be adjusted in accordance with such Non-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay Applicable Percentages; and
(E) if all or any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to portion of such Defaulting Lender’s Letter of Credit Exposure during the period that such Defaulting Lender’s Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Letter of Credit LC Exposure is neither Cash Collateralized reallocated nor reallocated cash collateralized nor backstopped pursuant to the requirements of this Section 2.16(c)clause (A) or (B) above, then, without prejudice to any rights or remedies of the Letter of Credit Issuer 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 Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 4.1(c3.05(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure shall be payable to the Letter of Credit Issuer Issuing Bank until such Letter of Credit LC Exposure is Cash Collateralized reallocated and/or reallocated;cash collateralized or otherwise backstopped; and
(div) (i) So long as such Lender is a Defaulting Lender, the Letter of Credit Issuer will Issuing Bank shall not be required to issue issue, amend or increase any new Letter of Credit or amend any outstanding Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereofCredit, unless the Letter of Credit Issuer it is reasonably satisfied that any the related exposure that would result from and the exposure to such Defaulting Lender is eliminated or fully Lender’s then outstanding LC Exposure will be 100% covered by the Revolving Credit Commitments of the Non-Defaulting Lenders and/or cash collateral or other backstop arrangement will be provided by Cash Collateralization or a combination thereof the Borrower in accordance with the requirements Section 4.03(c), and participating interests in any such newly issued or increased Letter of Section 2.16(c) above or otherwise Credit shall be allocated among Non-Defaulting Lenders in a manner reasonably consistent with Section 4.03(c)(iii)(A) (and such Defaulting Lender shall not participate therein). If a Bankruptcy Event or a Bail-In Action with respect to a Lender Parent of any Lender shall occur following the Effective Date and for so long as such event shall continue, the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless the Issuing Bank shall have entered into arrangements with the Borrower or such Lender, satisfactory to the Letter Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the 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 and such Lender is no longer a Defaulting Lender, then the LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date, if necessary, such Lender shall purchase at par such of the Loans and/or participations in Letters of Credit Issuer; andof the other Lenders as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans and/or participations in Letters of Credit in accordance with its Applicable Percentage.
Appears in 3 contracts
Sources: Credit Agreement (Sitio Royalties Corp.), Credit Agreement (STR Sub Inc.), Credit Agreement (Sitio Royalties Corp.)
Defaulting Lenders. 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 Commitment Fees shall cease to accrue on the unfunded portion of the Revolving Commitment of such Defaulting Lender pursuant to Section 4.1(a);
(b) the The Commitment of and the Revolving Credit Total Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, the Majority Lenders, the Required Lenders, the Majority Revolving Lenders, the Majority Term Lenders or the Required Lenders or any other requisite Lenders each affected Lender have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 13.1); provided that (i) any waiver, amendment or modification requiring the consent of all Lenders pursuant to Section 13.1 (other than Section 13.1(a)(x)) or requiring the consent of each affected Lender which affects such Defaulting Lender differently than other affected Lenders pursuant to Section 13.1(a)(i) or (ix) shall require the consent of such Defaulting Lender (which for the avoidance of doubt would include any change to the Maturity Date applicable to such Defaulting Lender, decreasing or forgiving any principal or interest due to such Defaulting Lender, any decrease of any interest rate applicable to Loans made by such Defaulting Lender (other than the waiving of post-default interest rates) and any increase in or extension of such Defaulting Lender’s Commitment) and (ii) any redetermination, whether an increase, decrease or affirmation, of the Borrowing Base shall occur without the participation of a Defaulting Lender, but the Revolving Commitment (i.e., the Revolving Commitment Percentage of any the Borrowing Base) of a Defaulting Lender may not be increased or extended without the consent of such Defaulting Lender;
(c) if If any Swingline Exposure or Letter of Credit Exposure exists at the time a Lender becomes a Defaulting Lender, then (i) all or any part of such Letter of Credit Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Non-Defaulting Revolving Lenders pro rata in accordance with their respective Revolving Credit Commitment PercentagePercentages; provided that (A) each Non-Defaulting Revolving Lender’s Revolving Credit Exposure may not in any event exceed the Revolving Credit Commitment Percentage of the Revolving Commitment of such Non-Defaulting Revolving Lender as in effect at the time of such reallocation and (B) subject to Section 13.21, neither such reallocation nor any payment by a Non-Defaulting Revolving Lender pursuant thereto will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Letter of Credit Issuer, the Swingline Lender Issuing Banks or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, (ii) to the extent that all or any portion (the “unreallocated portion”) of the Defaulting Lender’s Letter of Credit Exposure and Swingline Exposure cannot, or can only partially, be so reallocated to Non-Defaulting Revolving Lenders, whether by reason of the first proviso in Section 2.16(c)(i2.15(c)(i) above or otherwise, the Borrower shall within two (2) Business Days following notice by the Administrative Agent (x) first, prepay such Swingline Exposure (after giving pro forma effect to any partial reallocation pursuant to clause (i) above) and (y) second, Cash Collateralize for the benefit of the applicable Issuing Bank only the Borrower’s obligations corresponding to such Defaulting Lender’s Letter of Credit Exposure (after giving pro forma effect to any partial reallocation pursuant to clause (i) above), in accordance with the procedures set forth in Section 3.8 3.7 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 the requirements of this Section 2.16(c2.15(c), the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c4.1(b) with respect to such Defaulting Lender’s Letter of Credit Exposure during the period such Defaulting Lender’s Letter of Credit Exposure is Cash CollateralizedCollateralized (and such fees shall be payable to the Issuing Banks), (iv) if the Letter of Credit Exposure of the Non-Defaulting Revolving Lenders is reallocated pursuant to the requirements of this Section 2.16(c2.15(c), then the fees Letter of Credit Fees payable to for the account of the Lenders pursuant to Section 4.1(c4.1(b) shall be adjusted in accordance with such Non-Defaulting Revolving Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay any fees Letter of Credit Fees to the Defaulting Lender pursuant to Section 4.1(c4.1(b) with respect to such Defaulting Lender’s Letter of Credit Exposure during the period that such Defaulting Lender’s Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Letter of Credit Exposure is neither Cash Collateralized nor reallocated pursuant to the requirements of this Section 2.16(c2.15(c), then, without prejudice to any rights or remedies of the Letter of Credit Issuer any Issuing Bank or any Lender hereunder, all fees Letter of Credit Fees payable under Section 4.1(c4.1(b) with respect to such Defaulting Lender’s Letter of Credit Exposure shall be payable to the Letter of Credit Issuer such Issuing Bank until such Letter of Credit Exposure is Cash Collateralized and/or reallocated;
(d) (i) the Letter of Credit Issuer So long as any Lender is a Defaulting Lender, no Issuing Bank will not be required to issue any new Letter of Credit or amend any outstanding Letter of Credit to increase the face amount Stated Amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the Letter of Credit Issuer each Issuing Bank is reasonably satisfied that any exposure that would result from the exposure to such Defaulting Lender is eliminated or fully covered by the Revolving Credit Commitments of the Non-Defaulting Revolving Lenders or by Cash Collateralization or a combination thereof in accordance with the requirements of Section 2.16(cclause (c) above or otherwise in a manner reasonably satisfactory to the such Issuing Bank, and participating interests in any such newly issued or increased Letter of Credit Issuershall be allocated among Non-Defaulting Revolving Lenders in a manner consistent with Section 2.15(c)(i) (and Defaulting Lenders shall not participate therein);
(e) If the Borrower, the Administrative Agent and each Issuing Bank agree in writing in their discretion that a Lender that is a Defaulting Lender should no longer be deemed to be a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon, as of the effective date specified in such notice and subject to any conditions set forth therein, such Lender will cease to be a Defaulting Lender and will be a Non-Defaulting Lender and any applicable Cash Collateral shall be promptly returned to the Borrower and any Letter of Credit Exposure of such Lender reallocated pursuant to Section 2.15(c) shall be reallocated back to such Lender; provided that, except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Non-Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from such ▇▇▇▇▇▇’s having been a Defaulting Lender; and
(f) Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of that Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Section 11 or otherwise, and including any amounts made available to the Administrative Agent by that Defaulting Lender pursuant to Section 13.8), 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 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 each Issuing Bank hereunder; third, as the Borrower may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which that Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fourth, if so determined by the Administrative Agent and the Borrower, to be held in a non-interest bearing deposit account and released in order to satisfy obligations of that Defaulting Lender to fund Loans under this Agreement; fifth, to the payment of any amounts owing to the Lenders and each Issuing Bank as a result of any final judgment of a court of competent jurisdiction obtained by any Lender and such Issuing Bank against that Defaulting Lender as a result of that Defaulting Lender’s breach of its obligations under this Agreement; sixth, 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 final judgment of a court of competent jurisdiction obtained by the Borrower against that Defaulting Lender as a result of that Defaulting Lender’s breach of its obligations under this Agreement; and seventh, to that Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is a payment of the principal amount of any Loans or Unpaid Drawings, such payment shall be applied solely to pay the relevant Loans of, and Unpaid Drawings owed to, the relevant non-Defaulting Lenders on a pro rata basis prior to being applied in the manner set forth in this Section 2.15(f). 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 Section 3.7 shall be deemed paid to and redirected by that Defaulting Lender, and each Lender irrevocably consents hereto.
Appears in 3 contracts
Sources: Credit Agreement (Mach Natural Resources Lp), Credit Agreement (Mach Natural Resources Lp), Credit Agreement (California Resources Corp)
Defaulting Lenders. 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 set forth in Section 2.14(a) shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a)Lender;
(b) to the extent permitted by applicable law, (i) any voluntary prepayment of Revolving Credit Loans shall, if the Company so directs at the time of making such voluntary prepayment, be applied to the Revolving Credit Loans of other Lenders as if such Defaulting Lender had no Revolving Credit Loans outstanding and the Revolving Credit Exposure of such Defaulting Lender were zero, and (ii) any mandatory prepayment of the Revolving Credit Loans shall, if the Company so directs at the time of making such mandatory prepayment, be applied to the Revolving Credit Loans of other Lenders, but not to the Revolving Credit Loans of such Defaulting Lender, it being understood and agreed that the Company shall be entitled to retain any portion of any mandatory prepayment of the Revolving Credit Loans that is not paid to such Defaulting Lender solely as a result of the operation of the provisions of this clause (b);
(c) the Commitment of and the Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders or any other requisite Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 13.110.02); , provided that (i) 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 (ii) the Commitment of any Defaulting Lender may not be increased or extended without the consent of such Lender;
(cd) if any Swingline Exposure or Letter of Credit LC Exposure exists at the time a Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Letter of Credit LC Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Non-Lenders that are not Defaulting Lenders pro rata in accordance with their respective Revolving Percentages but, in any case, only to the extent (x) the sum of the Revolving Credit Commitment Percentage; provided Exposures of all Lenders that (A) each Non-are not Defaulting Lenders plus such Defaulting Lender’s Revolving Credit LC Exposure may does not in any event exceed the Revolving Credit Commitment total of such Non-the Commitments of all Lenders that are not Defaulting Lender as in effect at the time of such reallocation Lenders and (Bz) subject to the conditions set forth in Section 13.21, neither 5.02 are satisfied at such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Letter of Credit Issuer, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, time;
(ii) to if the extent that all or any portion reallocation described in clause (the “unreallocated portion”i) of the Defaulting Lender’s Letter of Credit Exposure and Swingline Exposure above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(c)(i) above or otherwiseeffected, the Borrower Borrowers shall within two one Business Days Day following notice by the Administrative Agent (x) first, prepay cash collateralize such Swingline Defaulting Lender’s LC Exposure (after giving pro forma 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 pro forma effect to any partial reallocation pursuant to clause (i) above), in accordance with the procedures set forth in Section 3.8 2.08(l) for so long as such Letter of Credit LC Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes Borrowers cash collateralize any portion of such Defaulting Lender’s Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(cparagraph (d), the Borrower Borrowers shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c2.14(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Letter of Credit LC Exposure is Cash Collateralized, cash collateralized;
(iv) if the Letter of Credit LC Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(cparagraph (d), then the fees payable to the Lenders pursuant to Section 4.1(c2.14(a) and Section 2.14(b) shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to such Defaulting Lender’s Letter of Credit Exposure during the period that such Defaulting Lender’s Letter of Credit Exposure is reallocated, or Percentages;
(v) if any Defaulting Lender’s Letter of Credit LC Exposure is neither Cash Collateralized cash collateralized nor reallocated pursuant to the requirements of this Section 2.16(cparagraph (d), then, without prejudice to any rights or remedies of the Letter of Credit Issuer Issuing Lenders 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 fees payable in connection with any Letters of Credit or Acceptances under Section 4.1(cSections 2.14(b) and 2.14(d) with respect to such Defaulting Lender’s Letter of Credit LC Exposure shall be payable to the Letter of Credit Issuer applicable Issuing Lenders until such Letter of Credit LC Exposure is Cash Collateralized cash collateralized and/or reallocated; and
(vi) subject to Section 10.16, no reallocation pursuant to this paragraph (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;
(de) (i) the Letter of Credit Issuer will not so long as any Lender is a Defaulting Lender, no Issuing Lender shall be required to issue issue, amend or increase any new Letter of Credit or amend create any outstanding Acceptance, 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 Borrowers in accordance with paragraph (d) of this Section, and participating interests in any such newly issued or increased Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the Letter of Credit Issuer is reasonably satisfied that any exposure that would result from the exposure to such Defaulting Lender is eliminated or fully covered by the Revolving Credit Commitments of the NonAcceptance shall be allocated among non-Defaulting Lenders or by Cash Collateralization or in a combination thereof manner consistent with paragraph (d)(i) of this Section (and Defaulting Lenders shall not participate therein); and
(f) In the event that each of the Administrative Agent, the Borrowers and the Issuing Lenders agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such ▇▇▇▇▇▇’s Commitment 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 the requirements of Section 2.16(c) above or otherwise in a manner reasonably satisfactory to the Letter of Credit Issuer; andits Revolving Percentage.
Appears in 3 contracts
Sources: Second Amendment (1 800 Flowers Com Inc), First Amendment (1 800 Flowers Com Inc), Credit Agreement (1 800 Flowers Com Inc)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a2.12(a);
(b) the Revolving Commitment of and the Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 13.19.02); provided that (i) any waiveramendment, amendment waiver or other modification requiring the consent of all Lenders or each all Lenders adversely affected Lender which affects such Defaulting Lender differently than other affected Lenders shall thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender and (ii) in accordance with the Commitment of any Defaulting Lender may not be increased or extended without the consent of such Lenderterms hereof;
(c) if any Swingline Exposure or Letter of Credit LC Exposure exists at the time a Revolving Lender becomes a Defaulting Lender, then then:
(i) [reserved];
(ii) all or any part of the LC Exposure (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Letter of Credit Exposure Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(e) and 2.05(f)) of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Revolver Lenders pro rata in accordance with their respective Revolving Credit Commitment Percentage; provided Applicable Percentages but only to the extent that (Ax) each Nonthe sum of all non-Defaulting Revolving Lenders’ Revolving Exposures plus such Defaulting Lender’s LC Exposure does not exceed the sum of all non-Defaulting Revolving Lenders’ Revolving Commitments and (y) such reallocation does not cause the aggregate Revolving Exposure of any non-Defaulting Lender to exceed such non-Defaulting Lender’s Revolving Credit Exposure may not in any event exceed the Revolving Credit Commitment of such Non-Defaulting Lender as in effect at the time of such reallocation and (B) Commitment; provided that, subject to Section 13.219.18, neither such no reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will under this clause (ii) shall constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Letter of Credit Issuer, the Swingline Lender or any other Lender may have party hereunder against such a Defaulting Lender or cause such arising from that ▇▇▇▇▇▇ having become a Defaulting Lender, including any claim of a non-Defaulting Lender to be as a Nonresult of such non-Defaulting Lender, ’s increased exposure following such reallocation;
(iii) if the reallocation described in clause (ii) to the extent that all or any portion (the “unreallocated portion”) of the Defaulting Lender’s Letter of Credit Exposure and Swingline Exposure above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(c)(i) above or otherwiseeffected, the Borrower shall within two one Business Days Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure (after giving pro forma effect to any partial reallocation pursuant to clause (i) above) and (y) second, Cash Collateralize cash collateralize for the benefit of the Issuing Banks the portion of such Defaulting Lender’s Letter of Credit LC Exposure (after giving pro forma effect to any partial reallocation pursuant to clause (i) above), that has not been reallocated in accordance with the procedures set forth in Section 3.8 2.05(i) for so long as such Letter of Credit LC Exposure is outstanding, ;
(iiiiv) if the Borrower Cash Collateralizes any portion of such Defaulting Lender’s Letter of Credit LC Exposure is cash collateralized pursuant to the requirements of this Section 2.16(c)clause (iii) above, the Borrower shall not be required to pay any participation fees to such Defaulting Lender pursuant to Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Letter portion of Credit Exposure during the period such Defaulting Lender’s Letter of Credit LC Exposure for so long as such Defaulting Lender’s LC Exposure is Cash Collateralized, cash collateralized;
(ivv) if any portion of the Letter of Credit LC Exposure of the Non-such Defaulting Lenders Lender is reallocated pursuant to the requirements of this Section 2.16(c)clause (ii) above, then the fees payable to the Lenders pursuant to Section 4.1(cSections 2.12(a) and 2.12(b) shall be adjusted in accordance with to give effect to such Non-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay reallocation;
(vi) [reserved]; and
(vii) if all or any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to portion of such Defaulting Lender’s Letter of Credit Exposure during the period that such Defaulting Lender’s Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Letter of Credit LC Exposure is neither Cash Collateralized reallocated nor reallocated cash collateralized pursuant to the requirements of this Section 2.16(c)clause (ii) or (iii) above, then, without prejudice to any rights or remedies of the Letter of Credit Issuer any Issuing Bank or any other Lender hereunder, all participation fees payable under Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure shall be payable to the Letter Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit Issuer issued by each Issuing Bank) until and to the extent that such Letter of Credit LC Exposure is Cash Collateralized reallocated and/or reallocated;cash collateralized; and
(d) (i) the so long as such Revolving Lender is a Defaulting Lender, no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit Issuer will not be required to issue any new Letter of Credit or amend any outstanding Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the Letter of Credit Issuer it is reasonably satisfied that any the related exposure that would result from and the exposure to such Defaulting Lender is eliminated or Lender’s then outstanding LC Exposure will be fully covered by the Revolving Credit Commitments of the Nonnon-Defaulting Revolving Lenders or and/or cash collateral provided by Cash Collateralization or a combination thereof the Borrower in accordance with Section 2.20(c), and participating interests in any such issued, amended, renewed or extended Letter of Credit will be allocated among the requirements of Section 2.16(c) above or otherwise non-Defaulting Revolving Lenders in a manner reasonably consistent with Section 2.20(c)(ii) (and such Defaulting Lender shall not participate therein). In the event that (i) a Bankruptcy Event with respect to a Revolving Lender Parent shall occur following the Amendment and Restatement Effective Date and for so long as such Bankruptcy Event shall continue or (ii) any applicable Issuing Bank has a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, such Issuing Bank shall not be required to issue, amend, renew or extend any Letter of Credit, unless such Issuing Bank shall have entered into arrangements with Holdings and the Borrower or the applicable Revolving Lender, satisfactory to such Issuing Bank to defease any risk to it in respect of such Lender hereunder. In the Letter event that the Administrative Agent, Holdings, the Borrower and each applicable Issuing Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused the applicable Revolving Lender to be a Defaulting Lender, then the LC Exposure of Credit Issuerthe Revolving Lenders shall be readjusted to reflect the inclusion of such Revolving Lender’s Revolving Commitment and on such date such Revolving Lender shall purchase at par such of the Revolving Loans of the applicable Class of the other Revolving Lenders of such Class as the Administrative Agent shall determine may be necessary in order for such Revolving Lender to hold such Revolving Loans of such Class in accordance with its Applicable Percentage; andprovided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while such Revolving Lender was a Defaulting Lender; provided further that, except as otherwise expressly agreed by the affected parties, no change hereunder from a Defaulting Lender to a non-Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from such Revolving ▇▇▇▇▇▇’s having been a Defaulting Lender.
Appears in 3 contracts
Sources: Credit Agreement (Resideo Technologies, Inc.), Credit Agreement (Resideo Technologies, Inc.), Credit Agreement (Resideo Technologies, Inc.)
Defaulting Lenders. 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) such Defaulting Lender will not be entitled to any fees shall cease accruing during such period pursuant to accrue Section 2.11(a) or 2.11(b) (without prejudice to the rights of the Lenders other than Defaulting Lenders in respect of such fees and, to the extent any LC Exposure or Swingline Exposure is reallocated to Non-Defaulting Lenders as set forth in Section 2.22(d)(i), any such fees will be paid to the applicable Non-Defaulting Lenders to the extent of such reallocation);
(b) such Lender will not, to the fullest extent permitted by applicable law, be entitled to vote in respect of amendments and waivers hereunder and the Commitment and the outstanding Loans or other extensions of credit of such Lender hereunder will not be taken into account in determining whether the Required Lenders or all of the Lenders, as required, have approved any such amendment or waiver (and the definition of “Required Lenders” will automatically be deemed modified accordingly for the duration of such period); provided that any such amendment or waiver that would (i) increase or extend the term of the Commitment of such Defaulting Lender, (ii) extend the date fixed for the payment of principal or interest owing to such Defaulting Lender hereunder, (iii) reduce the principal amount of any obligation owing to such Defaulting Lender, (iv) reduce the amount of or the rate of interest on any amount owing to such Defaulting Lender or of any fee payable to such Defaulting Lender hereunder or (v) alter the unfunded portion terms of this proviso, will continue to require the consent of such Defaulting Lender;
(c) the Borrower may irrevocably terminate the unused amount of the Commitment of such Defaulting Lender pursuant upon not less than three Business Days’ prior notice to Section 4.1(athe Administrative Agent (which will promptly notify the Lenders thereof);
(b) . Such termination shall be effective, with respect to such Defaulting Lender’s then existing unused Commitments, on the date set forth in such notice and, with respect to any unused Commitment thereafter arising, on the later of the date set forth in such notice and the Revolving Credit Exposure date on which such unused Commitment first arises (and no commitment fee will be payable in respect of such unused Commitment terminated on the date it arises). Upon termination of such Defaulting Lender’s unused Commitments under this Section 2.22(b), the Borrower shall pay or cause to be paid all accrued commitment fees payable to, and all other amounts owing to, such Defaulting Lender under this Agreement. Upon such payment, the obligations of such Defaulting Lender hereunder with respect to such terminated Commitments shall not be included in determining whether all Lenders or the Required Lenders or any other requisite Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 13.1)released and discharged; provided provided, however, that (i) 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 Lender’s rights and obligations provided in Section 9.05 with respect to such terminated Commitments shall require the consent of survive such Defaulting Lender release and (ii) the Commitment of any Defaulting Lender may not be increased or extended without the consent of discharge as to matters occurring prior to such Lenderdate;
(cd) if any Swingline LC Exposure or Letter of Credit Swingline Exposure exists at the time a Lender becomes is a Defaulting Lender, then :
(i) all such LC Exposure or any part of such Letter of Credit Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the proviso below, will automatically be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Non-Defaulting Lenders on a pro rata basis in accordance with their respective Revolving Credit Commitments (without giving effect to the Commitment Percentageof such Defaulting Lender); provided that (A) each no Non-Defaulting Lender’s Revolving Credit Exposure may not in any event exceed the Revolving Credit its Commitment of such Non-Defaulting Lender as in effect at the time of such reallocation and (B) subject to Section 13.21, neither such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim the Borrowerany Loan Party, the Administrative Agent, the Letter of Credit Issuerany Issuing Bank, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, ; and
(ii) to the extent that all or any portion (the “unreallocated portion”) of the Defaulting Lender’s Letter of Credit LC Exposure and or Swingline Exposure cannot, or can only partially, not be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(c)(iclause (i) above or otherwise, the Borrower shall within two will, not later than three Business Days following notice after demand therefor by the Administrative Agent (xat the direction of any Issuing Bank or the Swingline Lender), (A) firstCash Collateralize in full its obligations to the Issuing Banks in respect of the unreallocated portion of such LC Exposure, (B) prepay in full its obligations to the Swingline Lender in respect of the unreallocated portion of such Swingline Exposure or (after giving pro forma effect C) make other arrangements reasonably satisfactory to the Administrative Agent and to the Issuing Banks and the Swingline Lender in their sole discretion to protect them against the risk of non-payment by such Defaulting Lender; and
(iii) to the extent the unreallocated portion of any partial reallocation LC Exposure is Cash Collateralized pursuant to clause (ii) above, such Cash Collateral will be applied to reimburse the relevant Issuing Bank for the portion of any LC Disbursement to which such unreallocated portion relates and, to the extent the remaining portion of such LC Disbursement shall not be reimbursed by the Borrower in accordance with Section 2.05(f), the Non-Defaulting Lenders will be required pursuant to Section 2.05(f) to fund participations therein in accordance with clause (i) above;
(e) and (y) secondno Issuing Bank shall be required to issue, Cash Collateralize such Defaulting Lender’s amend or increase any Letter of Credit Exposure (after giving pro forma effect to any partial reallocation pursuant to clause (i) above)Credit, in accordance with and the procedures set forth in Section 3.8 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 the requirements of this Section 2.16(c), the Borrower Swingline Lender shall not be required to pay fund any fees Swingline Loan, unless such Issuing Bank or the Swingline Lender is satisfied that any LC Exposure or Swingline Exposure that would result therefrom is fully covered or eliminated by any combination reasonably satisfactory to such Issuing Bank or the Swingline Lender, as applicable, of the arrangements set forth in clauses (d)(i) and (d)(ii) above;
(f) in furtherance of the foregoing, if any Lender becomes, and during the period it remains, a Defaulting Lender, the Swingline Lender is hereby authorized by the Borrower (which authorization is irrevocable and coupled with an interest) to give, in its discretion, through the Administrative Agent, Borrowing Requests pursuant to Section 2.03 in such amounts and in such times as may be required to repay an outstanding Swingline Loan; and
(g) any amount paid by the Borrower for the account of such Defaulting Lender pursuant in its capacity as a Lender under this Agreement (whether on account of principal, interest, fees, indemnity payments or other amounts) will be applied to Section 4.1(c) with respect the payment of all amounts then due and payable by such Defaulting Lender under this Agreement until such amounts are paid in full and then will be paid to such Defaulting Lender’s Letter . The application of payments as described in the preceding sentence shall not result in a Default, and a Defaulting Lender may not charge any overdue or penalty interest on any amount owed to it that is not paid as a result of such application. If the Borrower, the Administrative Agent, each Issuing Bank and the Swingline Lender agree in writing in their discretion that a Lender that is a Defaulting Lender should no longer be deemed to be a Defaulting Lender, the Administrative Agent will so notify the parties hereto, and as of the effective date specified in such notice and subject to any conditions set forth therein, such Lender will, to the extent applicable, purchase at par such portion of the outstanding Loans or participations in Letters of Credit Exposure during and Swingline Loans of the period other Lenders or make such Defaulting Lender’s Letter of Credit Exposure is Cash Collateralized, (iv) if other adjustments as the Letter of Administrative Agent may determine to be necessary to cause the Credit Exposure of the Lenders to be on a pro rata basis in accordance with their respective Commitments, and such Lender will cease to be a Defaulting Lender and will become a Non-Defaulting Lenders is reallocated pursuant Lender (and the Credit Exposure of each Lender will automatically be adjusted on a prospective basis to reflect the foregoing); provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while such Lender was a Defaulting Lender; provided further that except to the requirements of this Section 2.16(c)extent otherwise expressly agreed by the affected parties, then the fees payable no change hereunder from a Defaulting Lender to the Lenders pursuant to Section 4.1(c) shall be adjusted in accordance with such a Non-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay Lender will constitute a waiver or release of any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to claim of any party hereunder arising from such Lender’s having been a Defaulting Lender’s Letter . The parties agree that this Section 2.22 does not violate any of Credit Exposure during the period that such Defaulting Lender’s Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Letter of Credit Exposure is neither Cash Collateralized nor reallocated pursuant to the requirements pro rata provisions of this Section 2.16(c), then, without prejudice to any rights or remedies of the Letter of Credit Issuer or any Lender hereunder, all fees payable under Section 4.1(c) with respect to 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;
(d) (i) the Letter of Credit Issuer will not be required to issue any new Letter of Credit or amend any outstanding Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the Letter of Credit Issuer is reasonably satisfied that any exposure that would result from the exposure to such Defaulting Lender is eliminated or fully covered by the Revolving Credit Commitments of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof in accordance with the requirements of Section 2.16(c) above or otherwise in a manner reasonably satisfactory to the Letter of Credit Issuer; andAgreement.
Appears in 3 contracts
Sources: Credit Agreement (Blackstone Inc.), Credit Agreement (Blackstone Group Inc), Credit Agreement (Blackstone Group L.P.)
Defaulting Lenders. 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 unused portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a5.07(a);
(b) the Commitment of and the Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 13.112.07); provided that (i) any waiveramendment, amendment waiver or other modification requiring the consent of all Lenders or each all Lenders affected Lender which affects such Defaulting Lender differently than other affected Lenders shall thereby shall, except as otherwise provided in Section 12.07, require the consent of such Defaulting Lender and (ii) in accordance with the Commitment of any Defaulting Lender may not be increased or extended without the consent of such Lenderterms hereof;
(c) if any Swingline Exposure or Letter of Credit LC Exposure exists at the time a such Lender becomes a Defaulting Lender, then then:
(i) all or any part of the LC Exposure (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Letter of Credit Exposure Defaulting Lender shall have funded its participation as contemplated by Sections 4.01(e) and 4.01(f)) of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Non-Lenders that are not Defaulting Lenders pro rata in accordance with their respective Revolving Credit Commitment Percentage; provided Applicable Percentages but only to the extent that (A) each Non-the sum of the Revolving Credit Exposures of all Lenders that are not Defaulting Lenders plus such Defaulting Lender’s Revolving Credit LC Exposure may (other than any portion thereof referred to in the parenthetical clause above) does not in any event exceed the Revolving Credit Commitment sum of such Non-the Commitments of Lenders that are not Defaulting Lender as in effect at the time of such reallocation Lenders and (B) subject to Section 13.21, neither such reallocation nor does not result in the Revolving Credit Exposure of any payment by Lender that is not a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Letter of Credit Issuer, the Swingline Lender or any other Lender may have against exceeding such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, ’s Commitment;
(ii) to if the extent that all or any portion (the “unreallocated portion”reallocation described in Section 5.15(c)(i) of the Defaulting Lender’s Letter of Credit Exposure and Swingline Exposure above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(c)(i) above or otherwiseeffected, the Borrower shall within two one Business Days Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure (after giving pro forma effect to any partial reallocation cash collateralize pursuant to clause (iSection 4.01(k) above) and (y) second, Cash Collateralize for the benefit of the applicable Issuing Lenders the portion of such Defaulting Lender’s Letter of Credit LC Exposure (after giving pro forma effect other than any portion thereof referred to any partial reallocation pursuant to clause (iin the parenthetical in such Section 5.15(c)(i)) above), in accordance with the procedures set forth in Section 3.8 that has not been reallocated for so long as such Letter of Credit LC Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(c5.15(c)(ii), the Borrower shall not be required to pay any participation fees to such Defaulting Lender pursuant to Section 4.1(c5.07(c) with respect to such Defaulting Lender’s Letter portion of Credit Exposure during the period such Defaulting Lender’s Letter of Credit LC Exposure for so long as such Defaulting Lender’s LC Exposure is Cash Collateralized, cash collateralized;
(iv) if any portion of the Letter of Credit LC Exposure of the Non-such Defaulting Lenders Lender is reallocated pursuant to the requirements of this Section 2.16(c5.15(c)(i), then the fees payable to the Lenders pursuant to Section 4.1(cSections 5.07(a) and 5.07(c) shall be adjusted in accordance with to give effect to such Non-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay reallocation; and
(v) if all or any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to portion of such Defaulting Lender’s Letter of Credit LC Exposure during the period that such Defaulting Lender’s Letter of Credit Exposure is reallocated, or (vsubject to reallocation pursuant to Section 5.15(c)(i) if any Defaulting Lender’s Letter of Credit Exposure is neither Cash Collateralized reallocated nor reallocated cash collateralized pursuant to the requirements of this Section 2.16(cSections 5.15(c)(i) or 5.15(c)(ii), then, without prejudice to any rights or remedies of the Letter of Credit Issuer any Issuing Lender or any other Lender hereunder, all facility fees that otherwise would have been payable under Section 5.07(a) to such Defaulting Lender with respect to such portion of its LC Exposure and all participation fees payable under Section 4.1(c5.07(c) with respect to such Defaulting Lender’s Letter of Credit LC Exposure shall be payable to the Letter Issuing Lenders (and allocated among them ratably based on the amount of such portion of the LC Exposure of such Defaulting Lender attributable to Letters of Credit Issuer issued by each Issuing Lender) until and to the extent that such Letter of Credit LC Exposure is Cash Collateralized reallocated and/or reallocated;cash collateralized; and
(d) no Issuing Lender shall be required to issue, amend or extend any Letter of Credit unless it is satisfied that the related exposure and such Defaulting Lender’s then outstanding LC Exposure will be fully covered by the Commitments of the Lenders that are not Defaulting Lenders and/or cash collateralized by the Borrower in accordance with Section 5.15(c), and participating interests in any such issued, amended or extended Letter of Credit will be allocated among the Lenders that are not Defaulting Lenders in a manner consistent with Section 5.15(c)(i) (and such Defaulting Lender shall not participate therein). In the event that (i) a Bankruptcy Event with respect to a Lender Parent of a Lender shall occur following the Letter of Credit Issuer will date hereof and for so long as such Bankruptcy Event shall continue or (ii) any 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, such Issuing Lender shall not be required to issue issue, amend or extend any new Letter of Credit or amend any outstanding Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereofCredit, unless such Issuing Lender shall have entered into arrangements with the Letter of Credit Issuer is reasonably satisfied that any exposure that would result from Borrower or the exposure applicable Lender satisfactory to such Issuing Lender to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the Borrower and the Issuing Lenders agree that a Defaulting Lender is eliminated or fully covered by has adequately remedied all matters that caused the Revolving Credit Commitments applicable Lender to be a Defaulting Lender, then the LC Exposure of the Non-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 and such funded participations in LC Disbursements of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans and such participations in accordance with its Applicable Percentage, and such Lender shall thereupon cease to be a Defaulting Lenders Lender (but shall not be entitled to receive any fees accrued during the period when it was a Defaulting Lender as set forth in this Section 5.15, and all amendments, waivers or by Cash Collateralization or a combination thereof other modifications effected without its consent in accordance with the requirements provisions of Section 2.16(c) above 12.07 and this Section 5.15 during such period shall be binding on it). The rights and remedies against, and with respect to, a Defaulting Lender under this Section 5.15 are in addition to, and cumulative and not in limitation of, all other rights and remedies that the Administrative Agent, the Lenders, the Issuing Lenders and the Borrower may at any time have against, or otherwise in a manner reasonably satisfactory to the Letter of Credit Issuer; andwith respect to, such Defaulting Lender.
Appears in 3 contracts
Sources: Five Year Revolving Credit Agreement (Zimmer Biomet Holdings, Inc.), Revolving Credit Agreement (Zimmer Biomet Holdings, Inc.), Revolving Credit Agreement (Zimmer Biomet Holdings, Inc.)
Defaulting Lenders. 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 Available Revolving Commitment of such Defaulting Lender pursuant to Section 4.1(a2.12(a);
(b) the Revolving Commitment of and the Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders or any other requisite Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 13.1); provided that (i) any waiver, amendment or modification requiring pursuant to Section 9.02; provided, that no such amendment, modification or waiver shall (i) increase the consent Commitment of all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require without the consent of such Defaulting Lender and Lender, (ii) reduce or forgive the Commitment principal amount of any Loan or LC Disbursement of such Defaulting Lender may not be increased or extended reduce the rate of interest thereon, or reduce or forgive any interest or fees payable to such Defaulting Lender hereunder, without the written consent of such Defaulting Lender or (iii) postpone any scheduled date of payment of the principal amount of any Loan or LC Disbursement of such Defaulting Lender, or any date for the payment of any interest, fees or other Obligations payable hereunder to such Defaulting Lender, or reduce the amount of, waive or excuse any such payment to such Defaulting Lender, or postpone the scheduled date of expiration of such Defaulting Lender’s Commitment without the written consent of such Defaulting Lender;
(c) if any Swingline Exposure, LC Exposure or Letter of Credit Protective Advance Exposure exists at the time a such Lender becomes a Defaulting Lender, then Lender then:
(i) (x) all or any part of such Letter of Credit the Facility A Swingline Exposure, Facility A LC Exposure and Facility A Protective Advance Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders that are Facility A Lenders in accordance with their respective Applicable Percentages but only to the extent (1) the sum of all the Facility A Credit Exposures of all non-Defaulting Lenders plus such Defaulting Lender’s Facility A Swingline Exposure, Facility A LC Exposure and Facility A Protective Advance Exposure does not exceed the total of all non-Defaulting Lenders’ Facility A Commitments and (2) after giving effect to such reallocation, the Facility A Credit Exposure of each non-Defaulting Lender that is a Facility A Lender does not exceed its Facility A Commitment and (y) all or any part of the Facility B Swingline Exposure, Facility B LC Exposure and Facility B Protective Advance Exposure of such Defaulting Lender will, subject to the limitation in the proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata that are Facility B Lenders in accordance with their respective Revolving Applicable Percentages but only to the extent (1) the sum of all the Facility B Credit Commitment Percentage; provided that (A) each NonExposures of all non-Defaulting Lenders plus such Defaulting Lender’s Revolving Facility B Swingline Exposure, Facility B LC Exposure and Facility B Protective Advance Exposure does not exceed the total of all non-Defaulting Lenders’ Facility B Commitments and (2) after giving effect to such reallocation, the Facility B Credit Exposure may not in any event exceed the Revolving Credit Commitment of such Noneach non-Defaulting Lender as in effect at the time of such reallocation and (B) subject to Section 13.21, neither such reallocation nor any payment by that is a Non-Defaulting Facility B Lender pursuant thereto will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Letter of Credit Issuer, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, does not exceed its Facility B Commitment;
(ii) to if the extent that all or any portion reallocation described in clause (the “unreallocated portion”i) of the Defaulting Lender’s Letter of Credit Exposure and Swingline Exposure above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(c)(i) above or otherwiseeffected, the Borrower Borrowers shall within two five Business Days following notice by the Administrative Agent (x) first, prepay such Protective Advance Exposure, (y) second, prepay such Swingline Exposure and (z) third, cash collateralize for the benefit of the Issuing Bank only the Borrowers’ obligations corresponding to such Defaulting Lender’s LC Exposure (in each case after giving pro forma 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 pro forma effect to any partial reallocation pursuant to clause (i) above), in accordance with the procedures set forth in Section 3.8 2.06(j) for so long as such Letter of Credit LC Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes Borrowers cash collateralize any portion of such Defaulting Lender’s Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(c)clause (ii) above, the Borrower Borrowers shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Letter of Credit LC Exposure is Cash Collateralized, cash collateralized;
(iv) if the Letter of Credit LC Exposure of the Nonnon-Defaulting Lenders that are Revolving Lenders is reallocated pursuant to the requirements of this Section 2.16(c)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(c2.12(a) and Section 2.12(b) shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay Applicable Percentages; and
(v) if all or any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to portion of such Defaulting Lender’s Letter of Credit Exposure during the period that such Defaulting Lender’s Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Letter of Credit LC Exposure is neither Cash Collateralized reallocated nor reallocated cash collateralized pursuant to the requirements of this Section 2.16(c)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the Letter of Credit Issuer Issuing Bank or any other Revolving Lender hereunder, all letter of credit fees payable under Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure shall be payable to the Letter of Credit Issuer Issuing Bank until and to the extent that such Letter of Credit LC Exposure is Cash Collateralized reallocated and/or reallocated;cash collateralized; and
(d) (i) so long as such Lender is a Defaulting Lender, the Letter of Credit Issuer will Swingline Lender shall not be required to issue fund any new Swingline Loan and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit or amend any outstanding Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereofCredit, unless the Letter of Credit Issuer it is reasonably satisfied that any the related exposure that would result from and the exposure to such Defaulting Lender is eliminated or fully Lender’s then outstanding LC Exposure will be 100% covered by the Revolving Credit Commitments of the Nonnon-Defaulting Lenders or and/or cash collateral will be provided by Cash Collateralization or a combination thereof the Borrowers in accordance with the requirements Section 2.21(c), and participating interests in any newly made Swingline Loan or any newly issued or increased Letter of Section 2.16(c) above or otherwise Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.21(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event or Bail-In Action 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) the Swingline Lender or the Issuing Bank has a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Revolving Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless the Swingline Lender or the Issuing Bank, as the case may be, shall have entered into arrangements with the Borrowers or such Revolving Lender, reasonably satisfactory to the Letter Swingline Lender or the Issuing Bank, as the case may be, to defease any risk to it in respect of Credit Issuer; andsuch Revolving Lender hereunder. In the event that the Administrative, the Borrowers, the Swingline Lender and the Issuing Bank each agrees that a Defaulting Lender that is a Revolving Lender has adequately remedied (in their reasonable judgment) all matters that caused such Revolving Lender to be a Defaulting Lender, then the Swingline Exposure, LC Exposure and Protective Advance Exposure of the Revolving Lenders shall be readjusted to reflect the inclusion of such Revolving Lender’s Revolving Commitment 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 Applicable Percentage.
Appears in 3 contracts
Sources: Credit Agreement (ODP Corp), Second Amendment (ODP Corp), Credit Agreement (Office Depot Inc)
Defaulting Lenders. Notwithstanding any provision of this Agreement anything to the contrarycontrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long then, until such time as such Lender is no longer a Defaulting Lender, to the extent permitted by applicable law:
(a) fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a2.11(a);
(b) the Commitment of and the Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 13.19.2); provided provided, that (i) any waiveramendment, amendment waiver or other modification requiring the consent of all Lenders or each all Lenders affected Lender which affects thereby shall, if such Defaulting Lender differently than other is an affected Lenders shall Lender, except as otherwise provided in Section 9.2, require the consent of such Defaulting Lender and (ii) in accordance with the Commitment of any Defaulting Lender may not be increased or extended without the consent of such Lenderterms hereof;
(c) if any Swingline Exposure or Letter of Credit LC Exposure exists at the time a such Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Letter of Credit the Swingline Exposure and LC Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the proviso below, automatically shall be reallocated (effective on as of the day date such Lender becomes a Defaulting Lender) among the Non-Defaulting Lenders pro rata in accordance with their respective Applicable Percentages (for the purposes of such reallocation, such Defaulting Lender’s Commitment shall be disregarded in determining the Non-Defaulting Lenders’ respective Applicable Percentages) but only to the extent (x) the sum of all Non-Defaulting Lenders’ Revolving Credit Commitment Percentage; provided that Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the total of all Non-Defaulting Lenders’ Commitments and (Ay) after giving effect to any such reallocation, each Non-Defaulting Lender’s Revolving Credit Exposure may does not in any event exceed the Revolving Credit Commitment of such Non-Defaulting Lender as in effect at the time of such reallocation and (B) subject to Section 13.21, neither such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Letter of Credit Issuer, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, ’s Commitment;
(ii) to if the extent that all or any portion reallocation described in clause (the “unreallocated portion”i) of the Defaulting Lender’s Letter of Credit Exposure and Swingline Exposure above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(c)(i) above or otherwiseeffected, the Borrower shall within two three (3) Business Days following written notice by the Administrative Agent (x) first, prepay such Swingline Exposure that has not been reallocated and (y) second, cash collateralize for the benefit of the applicable Issuing Banks only the Borrower’s Obligations corresponding to such Defaulting Lender’s LC Exposure that has not been reallocated (after giving pro forma 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 pro forma effect to any partial reallocation pursuant to clause (i) above), in accordance with the procedures set forth in Section 3.8 2.5(i) for so long as such Letter of Credit LC Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(c)clause (ii) above, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c2.11(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Letter of Credit LC Exposure is Cash Collateralized, cash collateralized;
(iv) if the Letter of Credit LC Exposure of the Non-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(c)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(c2.11(a) and Section 2.11(b) shall be adjusted in accordance with to give effect to such Non-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay reallocation; and
(v) if all or any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to portion of such Defaulting Lender’s Letter of Credit Exposure during the period that such Defaulting Lender’s Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Letter of Credit LC Exposure is neither Cash Collateralized reallocated nor reallocated cash collateralized pursuant to the requirements of this Section 2.16(c)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the Letter of Credit Issuer Issuing Bank or any other Lender hereunder, all Letter of Credit fees that otherwise would have been payable to such Defaulting Lender under Section 4.1(c2.11(b) with respect to such Defaulting Lender’s Letter of Credit unreallocated LC Exposure shall be payable to the Letter applicable Issuing Banks ratably based on the portion of such LC Exposure attributable to Letters of Credit Issuer issued by such Issuing Bank, until and to the extent that such Letter of Credit LC Exposure is Cash Collateralized reallocated and/or reallocated;cash collateralized pursuant to clause (i) or (ii) above; and
(d) (i) so long as such Lender is a Defaulting Lender, the Letter of Credit Issuer will Swingline Lender shall not be required to issue fund any new Swingline Loan and no Issuing Bank shall be required to issue, amend or increase any Letter of Credit or amend any outstanding Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereofCredit, unless the Letter of Credit Issuer it is reasonably satisfied that any the related exposure that would result from and the exposure to such Defaulting Lender is eliminated or fully Lender’s then outstanding LC Exposure will be 100% covered by the Revolving Credit Commitments of the Non-Defaulting Lenders or and/or cash collateral will be provided by Cash Collateralization or a combination thereof the Borrower in accordance with the requirements this Section 2.22, and participating interests in any such newly made Swingline Loan or any newly issued or increased Letter of Section 2.16(c) above or otherwise Credit shall be allocated among Non-Defaulting Lenders in a manner reasonably consistent with this Section 2.22 (and such Defaulting Lender shall not participate therein). In the event that (x) a direct or indirect parent company of a Lender becomes the subject of a proceeding under any Debtor Relief Law following the Restatement Effective Date and for so long as such proceeding under any Debtor Relief Law shall continue or (y) the Swingline Lender or any 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, the Swingline Lender shall not be required to fund any Swingline Loan, and such Issuing Bank shall not be required to issue, amend, renew or extend any Letter of Credit, unless the Swingline Lender or such Issuing Bank, as the case may be, shall have entered into arrangements with the Borrower or such Lender satisfactory to the Letter Swingline Lender or such Issuing Bank, as the case may be, to defease any risk to it in respect of Credit Issuersuch Lender hereunder. In the event that the Administrative Agent, the Borrower, the Swingline Lender and each Issuing Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such 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 the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage; andprovided 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; 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.
Appears in 2 contracts
Sources: Revolving Credit Agreement (CF Industries Holdings, Inc.), Revolving Credit Agreement (CF Industries Holdings, Inc.)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if (a) If any Lender becomes becomes, and during the period it remains, a Defaulting Lender or Potential Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lenderapply, notwithstanding anything to the contrary in this Agreement:
(a) fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a);
(bi) the Commitment of LC Exposure and the Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders or any other requisite Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 13.1); provided that (i) 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 (ii) the Commitment of any Defaulting Lender may not be increased or extended without the consent of such Lender;
(c) if any Swingline Exposure or Letter of Credit Exposure exists at the time a Lender becomes a Defaulting Lender, then (i) all or any part of such Letter of Credit Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the below proviso belowin this clause (i), automatically be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Non-Defaulting Lenders pro rata in accordance with their respective Revolving Credit Commitment PercentageCommitments; provided that (Aa) the sum of each Non-Defaulting Lender’s total Revolving Credit Exposure may not in any event exceed the Revolving Credit Commitment of such Non-Defaulting Lender as in effect at the time of such reallocation and (Bb) subject to Section 13.21, neither such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Letter of Credit IssuerIssuing Bank, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, ;
(ii) to the extent that all or any portion (the “unreallocated portion”) of the Defaulting Lender’s Letter of Credit LC Exposure and Swingline Exposure of any Defaulting Lender cannotnot be so reallocated, for any reason, or can only partially, be so reallocated with respect to Non-the LC Exposure and Swingline Exposure of any Potential Defaulting Lenders, whether by reason of the first proviso in Section 2.16(c)(i) above or otherwiseLender, the Borrower shall within will, not later than two (2) Business Days following notice after demand by the Administrative Agent (xat the direction of the Issuing Bank and/or the Swingline Lender), (a) firstCash Collateralize the obligations of the Borrower to the Issuing Bank or Swingline Lender in respect of such LC Exposure or Swingline Exposure, as the case may be, in an amount at least equal to the aggregate amount of the unreallocated portion of the LC Exposure and Swingline Exposure of such Defaulting Lender or such Potential Defaulting Lender, or (b) in the case of such Swingline Exposure, prepay such Swingline Exposure (after giving pro forma effect to any partial reallocation pursuant to clause (i) above) and (y) second, and/or Cash Collateralize in full the unreallocated portion thereof, or (c) make other arrangements satisfactory to the Administrative Agent, the Issuing Bank and the Swingline Lender in their sole discretion to protect them against the risk of non-payment by such Defaulting Lender or Potential Defaulting Lender; provided that (a) the sum of each Non-Defaulting Lender’s Letter of Revolving Credit Exposure may not in any event exceed the Revolving Commitment of such Non-Defaulting Lender, and (after giving pro forma effect b) neither any such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto nor any such Cash Collateralization or reduction will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Issuing Bank, the Swingline Lender or any other Lender may have against such Defaulting Lender or Potential Defaulting Lender, or cause such Defaulting Lender or Potential Defaulting Lender to any partial reallocation pursuant to clause (i) above), in accordance with the procedures set forth in Section 3.8 for so long as such Letter of Credit Exposure is outstanding, be a Non-Defaulting Lender;
(iii) if except as otherwise provided herein, any amount paid by the Borrower Cash Collateralizes for the account of a Defaulting Lender under this Agreement (whether on account of principal, interest, fees, indemnity payments or other amounts) will be retained by the Administrative Agent in a segregated non-interest bearing account until the termination of the Revolving Commitments at which time the funds in such account will be applied by the Administrative Agent, to the fullest extent permitted by law, in the following order of priority: first, to the payment of any portion amounts owing by such Defaulting Lender to the Administrative Agent under this Agreement, second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to the Issuing Bank or the Swingline Lender under this Agreement, third, if so determined by the Administrative Agent or requested by the Issuing Bank or Swingline Lender, to be held as cash collateral for future funding obligations of such Defaulting Lender in respect of any participation in any Swingline Loan or Letter of Credit, fourth, to the payment of any amounts owing to the Lenders, the Issuing Bank or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, the Issuing Bank or Swingline Lender against that Defaulting Lender as a result of such Defaulting Lender’s Letter breach of Credit Exposure pursuant its obligations under this Agreement, fifth, so long as no Default exists, to the requirements payment of this Section 2.16(c), any amounts owing to the Borrower shall not be required 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 sixth, to pay any fees amounts owing under this Agreement to such Defaulting Lender or as a court of competent jurisdiction may otherwise direct. 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 Section 4.1(cthis clause (iii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
(b) If the Borrower, the Administrative Agent, the Issuing Bank and the Swingline Lender agree in writing that any Defaulting Lender should no longer be deemed to be a Defaulting Lender or a Potential Defaulting Lender should no longer be deemed to be a Potential Defaulting Lender, as the case may be, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein, the LC Exposure and the Swingline Exposure of the other Lenders shall be readjusted to reflect the inclusion of such Lender’s Revolving Commitment, and such Lender will purchase at par such portion of outstanding Revolving Loans of the other Lenders and/or make such other adjustments as the Administrative Agent may determine to be necessary to cause the Revolving Credit Exposure of the Lenders to be on a pro rata basis in accordance with their respective Revolving Commitments, whereupon such Lender will cease to be a Defaulting Lender or Potential Defaulting Lender and will be a Non-Defaulting Lender (and such Revolving Credit Exposure of each Lender will automatically be adjusted on a prospective basis to reflect the foregoing), and if any cash collateral has been posted with respect to such Defaulting Lender’s Letter of Credit Exposure during the period such Lender or Potential Defaulting Lender’s Letter of Credit Exposure is Cash Collateralized, (iv) if the Letter of Credit Exposure Administrative Agent will promptly return such cash collateral to the Borrower; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while such 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 or Potential Defaulting Lender to Non-Defaulting Lenders is reallocated pursuant to the requirements Lender will constitute a waiver or release of this Section 2.16(c), then the fees payable to the Lenders pursuant to Section 4.1(c) shall be adjusted in accordance with such Non-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to such Defaulting Lender’s Letter claim of Credit Exposure during the period that such Defaulting Lender’s Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Letter of Credit Exposure is neither Cash Collateralized nor reallocated pursuant to the requirements of this Section 2.16(c), then, without prejudice to any rights or remedies of the Letter of Credit Issuer or any Lender party hereunder, all fees payable under Section 4.1(c) with respect to 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;
(d) (i) the Letter of Credit Issuer will not be required to issue any new Letter of Credit or amend any outstanding Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the Letter of Credit Issuer is reasonably satisfied that any exposure that would result from the exposure to such Defaulting Lender is eliminated or fully covered by the Revolving Credit Commitments of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof in accordance with the requirements of Section 2.16(c) above or otherwise in a manner reasonably satisfactory to the Letter of Credit Issuer; and.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Deltic Timber Corp), Revolving Credit Agreement (Deltic Timber Corp)
Defaulting Lenders. 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 Commitment Commitments of such Defaulting Lender pursuant to Section 4.1(a2.12(a);
(b) the aggregate principal amount of Loans, Revolving L/C Exposures and Available Unused Commitment of and the Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Lenders, Required Lenders or any other requisite affected Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 13.19.08); provided that (i) 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 Lender, (ii) the Commitment of any such Defaulting Lender may not be increased or extended without the consent of such Defaulting Lender and (iii) any amendment that reduces the principal amount of, or rate of interest on, any Loan made by such Defaulting Lender, shall require the consent of such Defaulting Lender;
(c) if any Swingline Revolving L/C Exposure or Letter of Swingline Facility Credit Exposure exists at the time a Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Letter of Revolving L/C Exposure and Swingline Facility Credit Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata in accordance with their respective Revolving Facility Percentages but only to the extent (x) such reallocation does not cause the aggregate Revolving Facility Credit Commitment Percentage; provided that (A) each NonExposure of any non-Defaulting Lender to exceed such non-Defaulting Lender’s Revolving Credit Exposure may not in any event exceed the Revolving Credit Facility Commitment of such Non-Defaulting Lender as in effect at the time of such reallocation and (By) subject to the conditions set forth in Section 13.21, neither 4.01 are satisfied at such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Letter of Credit Issuer, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, time;
(ii) to if the extent that all or any portion reallocation described in clause (the “unreallocated portion”i) of the Defaulting Lender’s Letter of Credit Exposure and Swingline Exposure above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(c)(i) above or otherwiseeffected, the Borrower shall within two five Business Days following notice by the Administrative Agent (x) first, prepay cash collateralize such Defaulting Lender’s Revolving L/C Exposure and/or Swingline Facility Credit Exposure (after giving pro forma 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 pro forma effect to any partial reallocation pursuant to clause (i) above), in accordance with the procedures set forth in Section 3.8 2.05(j) for so long as such Letter of Revolving L/C Exposure and/or Swingline Facility Credit Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s Letter of Credit Revolving L/C Exposure pursuant to the requirements of this Section 2.16(c2.22(c)(ii), the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c) 2.12 with respect to such Defaulting Lender’s Letter of Credit Revolving L/C Exposure during the period such Defaulting Lender’s Letter of Credit Revolving L/C Exposure is Cash Collateralized, cash collateralized;
(iv) if the Letter of Credit Revolving L/C Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(c2.22(c)(i), then the fees payable to the Lenders pursuant to Section 4.1(c) 2.12 shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to such Defaulting Lender’s Letter of Credit Exposure during the period that such Defaulting Lender’s Letter of Credit Exposure is reallocated, or Facility Percentage; and
(v) if any Defaulting Lender’s Letter of Credit Revolving L/C Exposure is neither Cash Collateralized cash collateralized nor reallocated pursuant to the requirements of this Section 2.16(c2.22(c)(i) or (ii), then, without prejudice to any rights or remedies of the Letter of Credit Issuer any Issuing Bank or any 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 Revolving L/C Commitment that was utilized by such Revolving L/C Exposure) and all Revolving L/C Participation Fees payable under Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Letter of Credit Revolving L/C Exposure shall be payable to the Letter of Credit Issuer applicable Issuing Bank until such Letter of Credit Exposure Revolving L/C exposure is Cash Collateralized cash collateralized and/or reallocated;
(d) so long as any Lender is a Defaulting Lender, no Issuing Bank shall be required to issue, amend or increase any Revolving Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Revolving Facility Commitments of the non-Defaulting Lenders or cash collateral will be provided by the Borrower in accordance with Section 2.22(c)(ii), and participating interests in any such newly issued or increased Revolving Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.22(c)(i) (and Defaulting Lenders shall not participate therein); and
(e) Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of such Defaulting Lender shall be applied at such time or times as may be determined by the Administrative Agent as follows: (i) first, to the Letter payment of Credit Issuer will not be any amounts owing by such Defaulting Lender to the Administrative Agent hereunder, (ii) second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Issuing Bank or Swingline Facility Lender, (iii) third, as the Borrower may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which that Defaulting Lender has failed to fund its portion thereof as required to issue by this Agreement, (iv) fourth, if so determined by the Administrative Agent or requested by an Issuing Bank or Swingline Facility Lender, held in such account as cash collateral for future funding obligations of the Defaulting Lender in respect of any new existing or future participating interest in any Revolving Letter of Credit or amend Swingline Facility Loans, (v) fifth, to the payment of any outstanding Letter amounts owing to the Lenders, Swingline Facility Lender or an Issuing Bank as a result of Credit any judgment of a court of competent jurisdiction obtained by any Lender, Swingline Facility Lender or such Issuing Bank against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, (vi) sixth, so long as no Default or Event of Default exists, to increase the face amount thereofpayment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against that Defaulting Lender as a result of that Defaulting Lender’s breach of its obligations under this Agreement and (vii) seventh, alter the drawing terms thereunder or extend the expiry date thereof, unless the Letter of Credit Issuer is reasonably satisfied that any exposure that would result from the exposure to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction, provided, with respect to this clause (vii), that if such payment is eliminated or fully covered by the Revolving Credit Commitments (x) a prepayment of the Nonprincipal amount of any Loans in respect of which a Defaulting Lender has not funded its participation obligations and (y) made at a time when the conditions set forth in Section 4.01 are satisfied, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Lender. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by Cash Collateralization a Defaulting Lender or to post cash collateral pursuant to Section 2.05(j) shall be deemed paid to and redirected by that Defaulting Lender, and each Lender irrevocably consents hereto.
(f) In the event that the Administrative Agent, the Borrower, Swingline Facility Lender and each Issuing Bank each agrees that a combination thereof Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Revolving Facility Credit 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 (or such of the Swingline Facility Loans of the Swingline Facility Lender) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with the requirements its Revolving Facility Percentage; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of Section 2.16(c) above or otherwise in Borrower while that Lender was a manner reasonably satisfactory Defaulting Lender; and provided, further, that except to the Letter extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of Credit Issuer; andany claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Frank's International N.V.), Revolving Credit Agreement (Frank's International N.V.)
Defaulting Lenders. Notwithstanding any provision of anything contained in this Agreement to the contrary, if any Tranche B Term Lender, Tranche C Term Lender, Tranche D Term Lender, Tranche E Term Lender, Tranche F Term Lender or Tranche G Term Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Tranche B Term Lender, Tranche C Term Lender, Tranche D Term Lender, Tranche E Term Lender, Tranche F Term Lender or Tranche G Term Lender, as applicable, is a Defaulting Lender:
(a) fees the Borrower shall cease have the right, at its sole expense and effort to accrue on seek one or more Persons reasonably satisfactory to the unfunded portion Administrative Agent and the Borrower to each become a substitute Tranche B Term Lender, Tranche C Term Lender, Tranche D Term Lender, Tranche E Term Lender, Tranche F Term Lender, Tranche G Term Lender or Tranche H Term Lender, as applicable, and assume all or part of the Tranche B Term Loan Commitment, Tranche C Term Loan Commitment, Tranche D Term Loan Commitment, Tranche E Term Loan Commitment, Tranche F Term Loan Commitment, Tranche G Term Loan Commitment or Tranche H Term Loan Commitment, as applicable, of such Defaulting Lender pursuant to Section 4.1(a);
(b) the Commitment of and the Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders or any other requisite Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 13.1); provided that (i) 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 (ii) the Commitment of any Defaulting Lender may not be increased or extended without the consent of such Lender;
(c) if any Swingline Exposure or Letter of Credit Exposure exists at the time a Lender becomes a Defaulting Lender, then (i) all or any part of such Letter of Credit Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the proviso below, automatically be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Non-Defaulting Lenders pro rata in accordance with their respective Revolving Credit Commitment Percentage; provided that (A) each Non-Defaulting Lender’s Revolving Credit Exposure may not in any event exceed the Revolving Credit Commitment of such Non-Defaulting Lender as in effect at the time of such reallocation and (B) subject to Section 13.21, neither such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim the Borrower, the Administrative AgentAgent and any such substitute Tranche B Term Lender, the Letter of Credit IssuerTranche C Term Lender, the Swingline Tranche D Term Lender, Tranche E Term Lender, Tranche F Term Lender, Tranche G Term Lender or any other Lender may have against Tranche H Term Lender, as applicable, shall execute and deliver, and such Defaulting Lender or cause shall thereupon be deemed to have executed and delivered, an appropriately completed Assignment and Acceptance to effect such substitution; and
(b) any amount payable to such Defaulting Lender to hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be a Non-Defaulting Lender, (ii) to the extent that all or any portion (the “unreallocated portion”) of the Defaulting Lender’s Letter of Credit Exposure and Swingline Exposure cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(c)(i) above or otherwise, the Borrower shall within two Business Days following notice by the Administrative Agent (x) first, prepay such Swingline Exposure (after giving pro forma 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 pro forma effect to any partial reallocation pursuant to clause (i) above), in accordance with the procedures set forth in Section 3.8 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 the requirements of this Section 2.16(c), the Borrower shall not be required to pay any fees payable to such Defaulting Lender pursuant to Section 4.1(c11.7) with respect may, in lieu of being distributed to such Defaulting Lender’s Letter , be retained by the Administrative Agent in a segregated non-interest bearing account and, subject to any applicable Requirement of Credit Exposure during Law, be applied at such time or times as may be determined by the period Administrative Agent (i) first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder, (ii) second, 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, (iii) third, 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 under this Agreement, (iv) fourth, pro rata, 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 Letter breach of Credit Exposure is Cash Collateralized, (iv) if the Letter of Credit Exposure of the Non-Defaulting Lenders is reallocated pursuant to the requirements of its obligations under this Section 2.16(c), then the fees payable to the Lenders pursuant to Section 4.1(c) shall be adjusted in accordance with such Non-Defaulting Lenders’ Revolving Credit Commitment Percentages Agreement and the Borrower shall not be required to pay any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to such Defaulting Lender’s Letter of Credit Exposure during the period that such Defaulting Lender’s Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Letter of Credit Exposure is neither Cash Collateralized nor reallocated pursuant to the requirements of this Section 2.16(c)fifth, then, without prejudice to any rights or remedies of the Letter of Credit Issuer or any Lender hereunder, all fees payable under Section 4.1(c) with respect to 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;
(d) (i) the Letter of Credit Issuer will not be required to issue any new Letter of Credit or amend any outstanding Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the Letter of Credit Issuer is reasonably satisfied that any exposure that would result from the exposure to such Defaulting Lender is eliminated or fully covered as otherwise directed by a court of competent jurisdiction. The rights and remedies against a Defaulting Lender under this Section 4.14 are in addition to other rights and remedies that the Revolving Credit Commitments of Borrower may have against such Defaulting Lender. The arrangements permitted or required by this Section 4.14 shall be permitted under this Agreement, notwithstanding any limitation on Liens or the Non-Defaulting Lenders pro rata sharing provisions or by Cash Collateralization or a combination thereof in accordance with the requirements of Section 2.16(c) above or otherwise in a manner reasonably satisfactory to the Letter of Credit Issuer; andotherwise.
Appears in 2 contracts
Sources: Credit Agreement (Warner Music Group Corp.), Credit Agreement (Warner Music Group Corp.)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a2.12(a);
(b) the Revolving Commitment of and the Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 13.19.02); provided that (i) any waiveramendment, amendment waiver or other modification requiring the consent of all Lenders or each all Lenders affected Lender which affects such Defaulting Lender differently than other affected Lenders shall thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender and (ii) in accordance with the Commitment of any Defaulting Lender may not be increased or extended without the consent of such Lenderterms hereof;
(ci) if in the case of a Defaulting Lender that is a Dollar Revolving Lender, any Swingline Exposure or Letter of Credit Dollar LC Exposure exists at the time such Dollar Revolving Lender becomes a Defaulting Lender or (ii) in the case of a Defaulting Lender that is a Multi-Currency Revolving Lender, any Multi-Currency LC Exposure exists at the time such Multi-Currency Revolving Lender becomes a Defaulting Lender, then then:
(i) in the case of a Defaulting Lender that is a Dollar Revolving Lender, all or any part of the Swingline Exposure (other than any portion thereof with respect to which such Letter of Credit Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c)) and Dollar LC Exposure (other than any portion thereof attributable to unreimbursed Dollar LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(e) and 2.05(f)) of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Dollar Revolver Lenders pro rata in accordance with their respective Dollar Applicable Percentages but only to the extent that the sum of all non-Defaulting Dollar Revolving Credit Commitment PercentageLenders’ Dollar Revolving Exposures plus such Defaulting Lender’s Swingline Exposure and Dollar LC Exposure does not exceed the sum of all non-Defaulting Dollar Revolving Lenders’ Dollar Revolving Commitments; provided that no reallocation under this clause (Ai) each Non-Defaulting Lender’s Revolving Credit Exposure may not in any event exceed the Revolving Credit Commitment of such Non-Defaulting Lender as in effect at the time of such reallocation and (B) subject to Section 13.21, neither such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will 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;
(ii) in the Borrowercase of a Defaulting Lender that is a Multi-Currency Revolving Lender, the Administrative Agent, the Letter of Credit Issuer, the Swingline Lender all or any part of the Multi-Currency LC Exposure (other Lender may have against than any portion thereof attributable to unreimbursed Multi-Currency LC Disbursements with respect to which such Defaulting Lender or cause shall have funded its participation as contemplated by Sections 2.05(e) and 2.05(f)) of such Defaulting Lender to shall be a Nonreallocated among the non-Defaulting Lender, (ii) Multi-Currency Revolver Lenders in accordance with their respective Multi-Currency Applicable Percentages but only to the extent that the sum of all or any portion (the “unreallocated portion”) of the non-Defaulting Multi-Currency Revolving Lenders’ Multi-Currency Revolving Exposures plus such Defaulting Lender’s Letter Multi-Currency Exposure does not exceed the sum of Credit Exposure and Swingline Exposure all non-Defaulting Multi-Currency Revolving Lenders’ Multi-Currency Revolving Commitments; provided that no reallocation under this clause (ii) 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;
(iii) if the reallocation described in (A) clause (i) above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(c)(i) above or otherwiseeffected, the Borrower Borrowers shall within two one Business Days Day following notice by the Administrative Agent (x1) first, prepay such Swingline Exposure (after giving pro forma effect to any partial reallocation pursuant to clause (i) above) and (y) second, Cash Collateralize the portion of such Defaulting Lender’s Letter Swingline Exposure that has not been reallocated and (2) second, cash collateralize for the benefit of Credit the Dollar Issuing Banks the portion of such Defaulting Lender’s Dollar LC Exposure (after giving pro forma effect to any partial reallocation pursuant to clause (i) above), that has not been reallocated in accordance with the procedures set forth in Section 3.8 2.05(i) for so long as such Letter Dollar LC Exposure is outstanding and (B) clause (ii) above cannot, or can only partially, be effected, the Borrowers shall within one Business Day following notice by the Administrative Agent cash collateralize for the benefit of Credit the Multi-Currency Issuing Banks the portion of such Defaulting Lender’s Multi-Currency LC Exposure that has not been reallocated in accordance with the procedures set forth in Section 2.05(i) for so long as such Multi-Currency LC Exposure is outstanding, ;
(iiiiv) if the Borrower Cash Collateralizes Borrowers cash collateralize any portion of such Defaulting Lender’s Letter of Credit Dollar LC Exposure or Multi-Currency LC Exposure pursuant to the requirements of this Section 2.16(c)clause (iii) above, the Borrower Borrowers shall not be required to pay any participation fees to such Defaulting Lender pursuant to Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Letter portion of Credit Exposure during the period such Defaulting Lender’s Letter of Credit Dollar LC Exposure or Multi-Currency LC Exposure, as the case may be, for so long as such Defaulting Lender’s Dollar LC Exposure or Multi-Currency LC Exposure, as the case may be, is Cash Collateralized, cash collateralized;
(ivv) if any portion of the Letter of Credit Dollar LC Exposure or Multi-Currency LC Exposure of the Non-such Defaulting Lenders Lender is reallocated pursuant to the requirements of this Section 2.16(c)clause (i) or (ii) above, then the fees payable to the Lenders pursuant to Section 4.1(cSections 2.12(a) and 2.12(b) shall be adjusted in accordance with to give effect to such Non-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay reallocation;
(vi) if all or any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to portion of such Defaulting Lender’s Letter of Credit Exposure during the period that such Defaulting Lender’s Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Letter of Credit Dollar LC Exposure is neither Cash Collateralized reallocated nor reallocated cash collateralized pursuant to the requirements of this Section 2.16(c)clause (i) or (iii) above, then, without prejudice to any rights or remedies of the Letter of Credit Issuer any Dollar Issuing Bank or any other Lender hereunder, all participation fees payable under Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Letter of Credit Dollar LC Exposure shall be payable to the Letter Dollar Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s Dollar LC Exposure attributable to Dollar Letters of Credit Issuer issued by each Dollar Issuing Bank) until and to the extent that such Letter Dollar LC Exposure is reallocated and/or cash collateralized;
(vii) if all or any portion of such Defaulting Lender’s Multi-Currency LC Exposure is neither reallocated nor cash collateralized pursuant to clause (ii) or (iii) above, then, without prejudice to any rights or remedies of any Multi-Currency Issuing Bank or any other Lender hereunder, all participation fees payable under Section 2.12(b) with respect to such Defaulting Lender’s Multi-Currency LC Exposure shall be payable to the Multi-Currency Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s Multi-Currency LC Exposure attributable to Multi-Currency Letters of Credit issued by each Multi-Currency Issuing Bank) until and to the extent that such Multi-Currency LC Exposure is Cash Collateralized reallocated and/or reallocated;cash collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender, (i) in the Letter case of Credit Issuer will a Defaulting Lender that is a Dollar Revolving Lender, the Swingline Lender shall not be required to issue fund any new Swingline Loan and no Dollar Issuing Bank shall be required to issue, amend, renew or extend any Dollar Letter of Credit or amend any outstanding Letter of Credit to increase the face amount thereofCredit, alter the drawing terms thereunder or extend the expiry date thereofunless, unless the Letter of Credit Issuer in each case, it is reasonably satisfied that any the related exposure that would result from and the exposure to such Defaulting Lender is eliminated Lender’s then outstanding Swingline Exposure or Dollar LC Exposure, as applicable, will be fully covered by the Dollar Revolving Credit Commitments of the Nonnon-Defaulting Dollar Revolving Lenders or and/or cash collateral provided by Cash Collateralization or a combination thereof the Borrowers in accordance with Section 2.20(c), and participating interests in any such funded Swingline Loan or in any such issued, amended, renewed or extended Dollar Letter of Credit will be allocated among the requirements of Section 2.16(c) above or otherwise non-Defaulting Dollar Revolving Lenders in a manner reasonably consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein) or (ii) in the case of a Defaulting Lender that is a Multi-Currency Revolving Lender, no Multi-Currency Issuing Bank shall be required to issue, amend, renew or extend any Multi-Currency Letter of Credit unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Multi-Currency LC Exposure will be fully covered by the Multi-Currency Revolving Commitments of the non-Defaulting Multi-Currency Revolving Lenders and/or cash collateral provided by the Borrowers in accordance with Section 2.20(c), and participating interests in any such issued, amended, renewed or extended Multi-Currency Letter of Credit will be allocated among the non-Defaulting Multi-Currency Revolving Lenders in a manner consistent with Section 2.20(c)(ii) (and such Defaulting Lender shall not participate therein). In the event that (i) a Bankruptcy Event with respect to a Revolving Lender Parent shall occur following the Escrow Date and for so long as such Bankruptcy Event shall continue or (ii) the Swingline Lender (solely in the case of a Revolving Lender Parent of a Dollar Revolving Lender) or any applicable Issuing Bank has a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan and such Issuing Bank shall not be required to issue, amend, renew or extend any Letter of Credit, unless the Swingline Lender or such Issuing Bank, as applicable, shall have entered into arrangements with the Borrowers or the applicable Revolving Lender, satisfactory to the Letter Swingline Lender or such Issuing Bank, as applicable, to defease any risk to it in respect of Credit Issuersuch Lender hereunder. In the event that the Administrative Agent, the Borrowers, the Swingline Lender (solely in the case of a Defaulting Lender that is a Dollar Revolving Lender) and each applicable Issuing Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused the applicable Revolving Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure, as applicable, of the Revolving Lenders shall be readjusted to reflect the inclusion of such Revolving Lender’s Revolving Commitment and on such date such Revolving Lender shall purchase at par such of the Revolving Loans of the applicable Class of the other Revolving Lenders of such Class as the Administrative Agent shall determine may be necessary in order for such Revolving Lender to hold such Revolving Loans of such Class in accordance with its Dollar Applicable Percentage or Multi-Currency Applicable Percentage, as the case may be; andprovided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers while such Revolving Lender was a Defaulting Lender; provided further that, except as otherwise expressly agreed by the affected parties, no change hereunder from a Defaulting Lender to a non-Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from such Revolving Lender’s having been a Defaulting Lender.
Appears in 2 contracts
Sources: Credit Agreement (Allegion PLC), Credit Agreement (Allegion PLC)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting LenderLender hereunder (as determined by the Administrative Agent), then the following provisions shall apply for so long as such Defaulting Lender is a Defaulting Lender:
(a) the Administrative Agent shall promptly notify the Borrower and each Lender that such Lender is a Defaulting Lender for purposes of this Agreement;
(b) fees under Section 2.09(a) shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a)Lender;
(bc) the Commitment of Commitments and the Revolving Credit Exposure of such Defaulting Lender shall not be included in determining disregarded for all purposes of any determination of whether all Lenders or the Required Lenders or any other requisite Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 13.19.02); provided provided, that this clause (ic) any waivershall not apply to the vote of a Defaulting Lender in the case of an amendment, amendment waiver or other modification requiring the consent of all Lenders such Lender or each Lender affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require thereby;
(d) for purposes of determining the consent amount of such Defaulting Lender and (ii) the total Commitments, the Commitment of any each Defaulting Lender may not shall be increased or extended without the consent excluded therefrom (other than any portion of such Commitment pursuant to which there is then outstanding a Loan from such Defaulting Lender);
(ce) if any Committed Swingline Exposure or Letter of Credit Uncommitted Swingline Exposure exists at the time a such Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Letter of Credit the Committed Swingline Exposure of such Defaulting Lender and such Uncommitted Swingline Exposure of such Defaulting Lender will, subject to the limitation in the proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata in accordance with their respective Revolving Credit Commitment Percentage; provided that (A) each Non-Defaulting Lender’s Revolving Credit Exposure may not in any event exceed the Revolving Credit Commitment of such Non-Defaulting Lender as in effect at the time of such reallocation and (B) subject to Section 13.21, neither such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Letter of Credit Issuer, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, (ii) Commitments but only to the extent that the sum of all or any portion (the “unreallocated portion”) of the non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Letter of Credit Committed Swingline Exposure and Uncommitted Swingline Exposure 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 so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(c)(i) above or otherwiseeffected, the Borrower shall within two one (1) Business Days Day following notice by the Administrative Agent (x) first, prepay such Committed Swingline Exposure and Uncommitted Swingline Exposure;
(after giving pro forma effect to any partial reallocation pursuant to clause (if) above) and (y) second, Cash Collateralize such Defaulting Lender’s Letter of Credit Exposure (after giving pro forma effect to any partial reallocation pursuant to clause (i) above), in accordance with the procedures set forth in Section 3.8 for so long as such Letter of Credit Exposure Lender is outstanding, (iii) if the Borrower Cash Collateralizes any portion of such a Defaulting Lender’s Letter of Credit Exposure pursuant to the requirements of this Section 2.16(c), the Borrower no Committed Swingline Lender shall not be required to pay fund any Committed Swingline Loan, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and Committed Swingline Exposure related to any newly made Committed Swingline Loan shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.20(e)(i) (and such Defaulting Lender shall not participate therein);
(g) in the Administrative Agent’s sole discretion:
(i) any prepayment of the principal amount of any Loans shall be applied solely to prepay the Loans of all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans of any Defaulting Lender; and
(ii) any amount payable to such Defaulting Lender pursuant to this Agreement (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 4.1(c2.12 or Section 2.15) with respect may, in lieu of being distributed to such Defaulting Lender’s Letter , be retained by the Administrative Agent in a segregated non-interest bearing account and, subject to any applicable requirements of Credit Exposure during law, be applied at such time or times as may be determined by the period Administrative Agent (i) first, pro rata, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent, (ii) second, 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 any Borrower or any Lender against such Defaulting Lender as a result of such Defaulting Lender’s Letter breach of Credit Exposure is Cash Collateralizedits obligations under this Agreement and (iii) third, (iv) if the Letter of Credit Exposure of the Non-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(c), then the fees payable to the Lenders pursuant to Section 4.1(c) shall be adjusted in accordance with such Non-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to such Defaulting Lender’s Letter of Credit Exposure during the period that such Defaulting Lender’s Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Letter of Credit Exposure is neither Cash Collateralized nor reallocated pursuant to the requirements of this Section 2.16(c), then, without prejudice to any rights or remedies of the Letter of Credit Issuer or any Lender hereunder, all fees payable under Section 4.1(c) with respect to 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;
(d) (i) the Letter of Credit Issuer will not be required to issue any new Letter of Credit or amend any outstanding Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the Letter of Credit Issuer is reasonably satisfied that any exposure that would result from the exposure to such Defaulting Lender is eliminated or fully covered as otherwise directed by a court of competent jurisdiction. In the Revolving Credit Commitments event that the Administrative Agent, the Borrower, the Committed Swingline Lenders and the Uncommitted Swingline Lenders, if any, each agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Committed Swingline Exposure and the Uncommitted Swingline Exposure of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof 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 Committed Swingline Loans and Uncommitted Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with the requirements of Section 2.16(c) above or otherwise in a manner reasonably satisfactory to the Letter of Credit Issuer; andits Applicable Percentage.
Appears in 2 contracts
Sources: 364 Day Credit Agreement (E TRADE FINANCIAL Corp), 364 Day Credit Agreement (E TRADE FINANCIAL Corp)
Defaulting Lenders. 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 The Commitment Fee shall cease to accrue on the unfunded portion any of the Commitment Revolving Credit Commitments of such Defaulting Lender pursuant to Section 4.1(a2.09(a);
(b) the Commitment The Commitment, Outstanding Amount of Term Loans and the Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders or any other requisite Lenders have taken or may take any action hereunder (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 13.110.01); provided that (i) any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than disproportionately when compared to the other affected Lenders Lenders, or increases or extends the Commitment of such Defaulting Lender, shall require the consent of such Defaulting Lender and (ii) the Commitment of any Defaulting Lender may not be increased or extended without the consent of such Lender;
(c) if If any Swingline Exposure L/C Obligations or Letter of Credit Exposure exists participations in Swing Line Loans exist at the time a such Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Letter of Credit Exposure the L/C Obligations or participations in Swing Line Loans of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata in accordance with their respective Pro Rata Shares but only to the extent the sum of all non-Defaulting Lenders’ Revolving Credit Commitment Percentage; provided that (A) each NonExposures does not exceed the total of all non-Defaulting Lender’s Revolving Credit Exposure may not in any event exceed the Revolving Credit Commitment of such Non-Defaulting Lender as in effect at the time of such reallocation and (B) subject to Section 13.21, neither such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Letter of Credit Issuer, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, Lenders’ Commitments;
(ii) to if the extent that all or any portion reallocation described in clause (the “unreallocated portion”i) of the Defaulting Lender’s Letter of Credit Exposure and Swingline Exposure above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(c)(i) above or otherwiseeffected, the applicable Borrower shall within two three (3) Business Days following notice by the Administrative Agent Agent, (x) first, prepay first repay the Swing Line Loans in an amount equal to such Swingline Exposure Defaulting Lender’s participation therein (after giving pro forma effect to any partial reallocation pursuant to clause (i) above) and (y) second, second Cash Collateralize for the benefit of the L/C Issuer only the applicable Borrower’s obligations corresponding to such Defaulting Lender’s Letter of Credit Exposure L/C Obligations (after giving pro forma effect to any partial reallocation pursuant to clause (i) above), ) in accordance with the procedures set forth in Section 3.8 2.03(f) for so long as such Letter of Credit Exposure is L/C Obligations are outstanding, ;
(iii) if the applicable Borrower Cash Collateralizes any portion of such Defaulting Lender’s Letter of Credit Exposure L/C Obligations pursuant to the requirements of this Section 2.16(c)clause (ii) above, the such Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c2.03(h) with respect to such Defaulting Lender’s Letter of Credit Exposure L/C Obligations during the period such Defaulting Lender’s Letter of Credit Exposure is L/C Obligations are Cash Collateralized, ;
(iv) if the Letter of Credit Exposure L/C Obligations or participation in Swing Line Loans of the Nonnon-Defaulting Lenders is are reallocated pursuant to the requirements of this Section 2.16(c)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(cSections 2.09(a) and 2.03(h) shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay Pro Rata Shares; and
(v) if all or any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to portion of such Defaulting Lender’s Letter of Credit Exposure during the period that such Defaulting Lender’s Letter of Credit Exposure L/C Obligations or participation in Swing Line Loans is neither reallocated, repaid or Cash Collateralized pursuant to clause (i) or (vii) if any Defaulting Lender’s Letter of Credit Exposure is neither Cash Collateralized nor reallocated pursuant to the requirements of this Section 2.16(c)above, then, without prejudice to any rights or remedies of the Letter of Credit Issuer L/C Issuer, Swing Line Lender or any other Lender hereunder, all letter of credit fees payable under Section 4.1(c2.03(h) or in respect of Swing Line Loans with respect to such Defaulting Lender’s Letter of Credit Exposure L/C Obligations or participation in Swing Line Loans shall be payable to the Letter of Credit L/C Issuer or Swing Line Lender until and to the extent that such Letter of Credit Exposure is L/C Obligations or participation in Swing Line Loans are repaid, reallocated, and/or Cash Collateralized and/or reallocated;Collateralized; and
(d) So long as (i) such Lender is a Defaulting Lender and (ii) a reallocation pursuant to clauses (c)(i) or (c)(ii) above cannot be effectuated, the Letter of Credit L/C Issuer will shall not be required to issue issue, amend or increase any new Letter of Credit, unless it has received assurances reasonably satisfactory to it that non-Defaulting Lenders will cover the related exposure and/or cash collateral will be provided by the applicable Borrower in accordance with Section 2.16(c), and participating interests in any newly issued or increased Letter of Credit or amend any outstanding Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the Letter of Credit Issuer is reasonably satisfied that any exposure that would result from the exposure to shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.16(c)(i) (and such Defaulting Lender is eliminated or fully covered by shall not participate therein).
(e) In the event that the Administrative Agent, the Initial Borrower, the L/C Issuer and the Swing Line Lender each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the L/C Obligations and participations in Swing Line Loans of the Revolving Credit Commitments Lenders 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 Non-Defaulting Revolving Credit Loans of the other Revolving Credit Lenders or by Cash Collateralization or a combination thereof as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Revolving Credit Loans in accordance with the requirements 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 Section 2.16(c) above or otherwise in any Borrower while that Lender was a manner reasonably satisfactory Defaulting Lender; provided, further, that, except to the Letter extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender will constitute a waiver or release of Credit Issuer; andany claim of any party hereunder arising from such L▇▇▇▇▇’s having been a Defaulting Lender.
Appears in 2 contracts
Sources: Amendment No. 1 (Global Business Travel Group, Inc.), Credit Agreement (Global Business Travel Group, Inc.)
Defaulting Lenders. 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 any Revolving Commitment of such Defaulting Lender pursuant to Section 4.1(a3.3(a);
(b) the Commitment of Commitments and the Revolving Total Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or Lenders, the Required Lenders Lenders, the Majority Facility Lenders, Required Revolving Lenders, or any other requisite group of Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 13.110.2); provided that (i) 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 Lender, and (ii) any waiver, amendment or modification that would increase the Commitment Commitments of such Lender, or postpone the final maturity date of any Defaulting Lender may not be increased or extended without payment of principal owed to such Lender, shall require the consent of such Defaulting Lender;
(c) if any Swingline Exposure or Letter of Credit LC Exposure exists at the time a Revolving Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Letter of Credit Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the proviso below, automatically and LC Exposure shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Non-Defaulting non‑Defaulting Lenders pro rata in accordance with their respective Revolving Credit Commitment Percentage; provided that Applicable Percentages to the extent (A) each Non-Defaulting Lender’s immediately after giving effect thereto, the sum of all non‑Defaulting Lenders’ Revolving Credit Exposure may would not in any event exceed the total of all non‑Defaulting Lenders’ Revolving Credit Commitment of such Non-Defaulting Lender as in effect at the time of such reallocation Commitments and (B) subject to the conditions set forth in Section 13.215.2 are satisfied at such time (for the avoidance of doubt, neither no Lender’s Revolving Commitment shall be changed as a result of such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Letter of Credit Issuer, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, reallocation);
(ii) to if the extent that all or any portion reallocation described in clause (the “unreallocated portion”i) of the Defaulting Lender’s Letter of Credit Exposure and Swingline Exposure above cannot, or can only partially, be so reallocated to Non-Defaulting Lenderseffected, whether by reason of the first proviso in Section 2.16(c)(i) above or otherwise, the Borrower shall within two one Business Days Day following notice by the Administrative Agent (x) firstAgent, prepay such Swingline Exposure (the Borrower shall, after giving pro forma effect to any partial reallocation pursuant to clause (i) above, (A) first, prepay such Swingline Exposure and (yB) second, Cash Collateralize cash collateralize such Defaulting Lender’s Letter of Credit LC Exposure (after giving pro forma effect to any partial reallocation pursuant to clause (i) above), in accordance with the procedures set forth in Section 3.8 2.9(i) for so long as such Letter of Credit LC Exposure is outstanding, ;
(iii) if to the extent the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(c2.12(c), the Borrower shall not be required to pay any fees to for the account of such Defaulting Lender pursuant to Section 4.1(c3.3(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Letter of Credit LC Exposure is Cash Collateralized, cash collateralized;
(iv) if the Letter of Credit LC Exposure of the Non-Defaulting Lenders such non‑Defaulting Lender is reallocated pursuant to the requirements of this Section 2.16(c2.12(c), then the fees payable to the Lenders pursuant to Section 4.1(c3.3(b) shall be adjusted in accordance with such Non-Defaulting non‑Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to such Defaulting Lender’s Letter of Credit Exposure during the period that such Defaulting Lender’s Letter of Credit Exposure is reallocated, or Applicable Percentages; and
(v) if the Administrative Agent shall promptly notify the Lenders of any Defaulting Lender’s Letter of Credit Exposure is neither Cash Collateralized nor reallocated pursuant to the requirements of reallocation described in this Section 2.16(c2.12(c), then, without prejudice to any rights or remedies of the Letter of Credit Issuer or any Lender hereunder, all fees payable under Section 4.1(c) with respect to 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;
(d) (i) the Letter of Credit Issuer will not be required to issue any new Letter of Credit or amend any outstanding Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the Letter of Credit Issuer is reasonably satisfied that any exposure that would result from the exposure to such Defaulting Lender is eliminated or fully covered by the Revolving Credit Commitments of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof in accordance with the requirements of Section 2.16(c) above or otherwise in a manner reasonably satisfactory to the Letter of Credit Issuer; and
Appears in 2 contracts
Sources: Credit Agreement (Gci Liberty, Inc.), Credit Agreement (Gci, LLC)
Defaulting Lenders. Notwithstanding any provision of this Agreement any Loan Document to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(ai) fees Revolving Commitment Fees otherwise payable pursuant to Section 3.05(a) shall cease to accrue on the unfunded portion of the Revolving Commitment of such Defaulting Lender pursuant to Section 4.1(a);Lender.
(bii) the The Revolving Commitment of and the Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, the Majority Lenders, the Majority Revolving Lenders or the Required Lenders or any other requisite Lenders each adversely affected Lender have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 13.112.02); , and no consent of such Defaulting Lender shall be required to take any action hereunder that requires the consent of all Lenders, the Majority Lenders, the Majority Revolving Lenders or each adversely affected Lender (including any consent to any amendment or waiver pursuant to Section 12.02), provided that (i) any waiver, amendment or modification (A) that would increase the Commitment of such Defaulting Lender, (B) that would reduce the principal of any Loan owed to such Defaulting Lender or extend the final maturity thereof or (C) requiring the consent of all Lenders or each adversely affected Lender which affects such Defaulting Lender differently than all other Lenders or all other adversely affected Lenders Lenders, as the case may be, shall require the consent of such Defaulting Lender and (ii) Lender; provided further, that any amendment to the Commitment of any Defaulting Lender may not be increased or extended without foregoing proviso shall require the consent of such Lender;all Lenders, including any Defaulting Lenders.
(ciii) if If any Swingline LC Exposure or Letter of Credit Swingline Exposure exists at the time a Revolving Lender becomes a Defaulting Lender, then then:
(iA) all or any part of such Letter of Credit LC Exposure of such Defaulting Lender and such or Swingline Exposure of such Defaulting Lender will, subject to the limitation in the proviso below, automatically shall be reallocated (effective on as of the day date such Revolving Lender becomes a Defaulting Lender) among the Non-Defaulting Lenders pro rata in accordance with their respective Applicable Revolving Percentages (for the purposes of such reallocation, the Defaulting Lender’s Revolving Commitment shall be disregarded in determining the Non-Defaulting Lenders’ Applicable Revolving Percentages), but only to the extent that (x) the sum of all Non-Defaulting Lenders’ Revolving Credit Commitment Percentage; provided that Exposures plus such Defaulting Lender’s LC Exposure and Swingline Exposure does not exceed the total of all Non-Defaulting Lenders’ Revolving Commitments, (Ay) the sum of each Non-Defaulting Lender’s Revolving Credit Exposure may plus its reallocated share of such Defaulting Lender’s LC Exposure and Swingline Exposure does not in any event exceed the Revolving Credit Commitment of such Non-Defaulting Lender as in effect Lender’s Revolving Commitment and (z) no Event of Default has occurred and is continuing at the time of such reallocation and time;
(B) subject to Section 13.21, neither such if the reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Letter of Credit Issuer, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, described in clause (iiA) to the extent that all or any portion (the “unreallocated portion”) of the Defaulting Lender’s Letter of Credit Exposure and Swingline Exposure above cannot, or can only partially, be so reallocated to Non-Defaulting Lenderseffected, whether by reason of the first proviso in Section 2.16(c)(i) above or otherwise, then the Borrower shall shall, within two three (3) Business Days following written notice by from the Administrative Agent (x) firstAgent, prepay cash collateralize such Defaulting Lender’s LC Exposure and Swingline Exposure (after giving pro forma effect to any partial reallocation pursuant to clause (iA) above) and (y) second, Cash Collateralize such Defaulting Lender’s Letter of Credit Exposure (after giving pro forma effect to any partial reallocation pursuant to clause (i) above), in accordance with the procedures set forth in Section 3.8 2.07(e) for so long as such Letter of Credit LC Exposure or Swingline Exposure is outstanding, outstanding and the relevant Defaulting Lender remains a Defaulting Lender;
(iiiC) if the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(c4.03(c)(iii), then the Borrower shall not be required to pay any participation fees to such Defaulting Lender pursuant to Section 4.1(c3.05(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Letter of Credit LC Exposure is Cash Collateralized, cash collateralized;
(ivD) if all or any portion of the Letter of Credit LC Exposure of the Non-such Defaulting Lenders Lender is reallocated pursuant to the requirements of this Section 2.16(c4.03(c)(iii), then the fees payable to the Revolving Lenders pursuant to Section 4.1(cSections 3.05(a) and 3.05(b) shall be adjusted in accordance with such Non-Defaulting Lenders’ Applicable Revolving Credit Commitment Percentages and the Borrower shall not be required to pay any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to such Defaulting Lender’s Letter of Credit Exposure during the period that such Defaulting Lender’s Letter of Credit Exposure is reallocated, or Percentages; and
(vE) if any Defaulting Lender’s Letter of Credit LC Exposure is neither Cash Collateralized cash collateralized nor reallocated pursuant to the requirements of this Section 2.16(c4.03(c)(iii), then, without prejudice to any rights or remedies of the Letter of Credit Issuer any Issuing Bank or any Revolving Lender hereunder, all participation fees payable under Section 4.1(c3.05(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure shall be payable to the Letter applicable Issuing Banks, ratably based on the portion of such LC Exposure attributable to Letters of Credit Issuer issued by each such Issuing Bank, until such Letter of Credit LC Exposure is Cash Collateralized reallocated and/or reallocated;
cash collateralized pursuant to clause (dA) or (iB) the Letter of Credit Issuer will not be required to issue any new Letter of Credit or amend any outstanding Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the Letter of Credit Issuer is reasonably satisfied that any exposure that would result from the exposure to such Defaulting Lender is eliminated or fully covered by the Revolving Credit Commitments of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof in accordance with the requirements of Section 2.16(c) above or otherwise in a manner reasonably satisfactory to the Letter of Credit Issuer; andabove.
Appears in 2 contracts
Sources: Credit Agreement (Exterran Corp), Credit Agreement (Exterran Holdings Inc.)
Defaulting Lenders. (1) Notwithstanding any other provision of this Agreement to the contraryAgreement, if any Lender becomes a Defaulting Lender, then the following provisions of this Section 8.8 shall apply for so long as such until the Agent, the Borrowers, the Issuing Bank and the Swing Line Lender is all agree that the Defaulting Lender has remedied all matters that caused it to be a Defaulting Lender:.
(a2) fees Any Standby Fee shall cease to accrue on the unfunded Defaulting Lender’s unadvanced portion of the Commitment of such any Credit.
(3) The Defaulting Lender pursuant shall not be entitled to Section 4.1(a);
(bexercise any right of consent under Sections 8.6(3) the and 8.6(4) and its Commitment of and the Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all the Lenders or the Required Lenders or any other requisite Lenders have taken or may take any action hereunder (including provided any consent under those Sections. However, the Defaulting Lender shall be entitled to exercise its right of consent in respect of any amendment or waiver pursuant to Section 13.1); provided matter that (i) expressly requires its consent and any waiver, amendment or modification requiring matter that requires the consent of all Lenders or each if it would be affected Lender which affects such differently than the other Lenders.
(4) If the Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lender and (ii) the Commitment of any Defaulting Lender may not be increased or extended without the consent of such Lender;
(c) if any Swingline Exposure or Letter of Credit Exposure exists at the time is a Lender becomes a Defaulting Revolving Lender, then (i) all or any part of such Letter of Credit Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject the Borrowers’ right to the limitation in the proviso below, automatically be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Non-Defaulting Lenders pro rata in accordance with their respective Revolving Credit Commitment Percentage; provided that (A) each Non-Defaulting Lender’s Revolving Credit Exposure may not in any event exceed the Revolving Credit Commitment of such Non-Defaulting Lender as in effect at the time of such reallocation and (B) subject to Section 13.21, neither such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Letter of Credit Issuer, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, (ii) to the extent that all or any portion (the “unreallocated portion”) receive Advances of the Defaulting Lender’s Letter unadvanced Commitment under the Revolving Credit shall be suspended and, provided that no Event of Credit Exposure Default or Pending Event of Default has occurred and Swingline Exposure cannotis continuing, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason the participation of the first proviso other Revolving Lenders in Advances under the Revolving Credit shall be re-adjusted without regard to the unadvanced Commitment of the Defaulting Lender but without increasing the overall Commitments of the other Revolving Lenders to the Revolving Credit. If the unadvanced Commitments of the other Revolving Lenders would not be sufficient to cover their obligations and the obligations of the Defaulting Lender under Section 2.16(c)(i9.1 then the Borrowers shall repay Advances under the Swing Line Tranche and/or provide cash Collateral to the Issuing Bank to secure L/Cs to the extent necessary to cover the deficiency.
(5) above or otherwiseIf the Borrowers provide cash Collateral to the Issuing Bank to secure L/Cs, the Borrower shall within two Business Days following notice by the Administrative Agent (x) first, prepay such Swingline Exposure (after giving pro forma 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 pro forma effect to any partial reallocation pursuant to clause (i) above), in accordance with the procedures set forth in Section 3.8 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 the requirements of this Section 2.16(c), the Borrower Borrowers shall not be required to pay any fees to such an L/C Fee for the account of the Defaulting Lender pursuant to Section 4.1(c) with in respect to such Defaulting Lender’s 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-amount for which it has provided cash Collateral. If the obligation of the Defaulting Lender regarding L/Cs under Section 9.1 is borne by the other Revolving Lenders is reallocated pursuant to the requirements as a result of this Section 2.16(c8.8(4), then the fees other Revolving Lenders shall be entitled to receive any L/C Fee that would otherwise have been payable to the Lenders pursuant to Section 4.1(c) shall be adjusted in accordance with such Non-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to such Defaulting Lender’s Letter of Credit Exposure during the period that such Defaulting Lender’s Letter of Credit Exposure is reallocated, or .
(v6) if any Defaulting Lender’s Letter of Credit Exposure is neither Cash Collateralized nor reallocated pursuant to the requirements of this Section 2.16(c), thenThe Agent may, without prejudice to any the other rights or remedies of the Letter of Credit Issuer or any Lenders, make adjustments to the payments to a Defaulting Lender hereunder, all fees payable under Section 4.1(c) with respect this Agreement as necessary to such compensate the other Lenders and the Agent for the Defaulting Lender’s Letter of Credit Exposure shall be payable failure to the Letter of Credit Issuer until such Letter of Credit Exposure is Cash Collateralized and/or reallocated;
(d) (i) the Letter of Credit Issuer will not be required to issue make any new Letter of Credit payment or amend fulfill any outstanding Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the Letter of Credit Issuer is reasonably satisfied that any exposure that would result from the exposure to such Defaulting Lender is eliminated or fully covered by the Revolving Credit Commitments of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof in accordance with the requirements of Section 2.16(c) above or otherwise in a manner reasonably satisfactory to the Letter of Credit Issuer; andother obligation under this Agreement.
Appears in 2 contracts
Sources: Credit Agreement (Waste Management Inc), Credit Agreement (Waste Management Inc)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(ai) fees Fees otherwise payable pursuant to Section 3.05(a) shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a);Lender.
(bii) the The Commitment of and the Revolving principal amount of the Loans and participation interests in Letters of Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or Lenders, the Majority Lenders, the Required Lenders or any other requisite the Supermajority Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 13.112.02); , provided that (i) any waiver, amendment or modification (A) that would increase the Commitment or the Maximum Credit Amount of such Defaulting Lender or that would amend this Section 4.03(c)(ii) in any manner that would result in such Defaulting Lender’s right to vote as provided herein being further restricted or (B) requiring the consent of all Lenders or each adversely affected Lender which affects such Defaulting Lender differently than all other Lenders or all other adversely affected Lenders Lenders, as the case may be, shall require the consent of such Defaulting Lender Lender; and (ii) provided further that any redetermination or affirmation of the Borrowing Base shall occur without the participation of a Defaulting Lender, but the Commitment (i.e. the Applicable Percentage of any the Borrowing Base of a Defaulting Lender Lender) may not be increased or extended without the consent of such Defaulting Lender;.
(ciii) if If any Swingline Exposure or Letter of Credit LC Exposure exists at the time a Lender becomes a Defaulting Lender, then Lender then:
(iA) all or any part of such Letter of Credit LC Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Non-Defaulting Lenders pro rata in accordance with their respective Applicable Percentages (for the purposes of such reallocation the Defaulting Lender’s Commitment shall be disregarded in determining the Non-Defaulting Lender’s Applicable Percentage) but only to the extent (x) the sum of all Non-Defaulting Lenders’ Revolving Credit Commitment Percentage; provided that Exposures plus such Defaulting Lender’s LC Exposure does not exceed the total of all Non-Defaulting Lenders’ Commitments, (Ay) the conditions set forth in Section 6.02 are satisfied at such time and (z) the sum of each Non-Defaulting Lender’s Revolving Credit Exposure may plus its reallocated share of such Defaulting Lender’s LC Exposure does not in any event exceed the Revolving Credit Commitment of such Non-Defaulting Lender as in effect at the time of such reallocation and Lender’s Commitment;
(B) subject to Section 13.21, neither such if the reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Letter of Credit Issuer, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, described in clause (iiA) to the extent that all or any portion (the “unreallocated portion”) of the Defaulting Lender’s Letter of Credit Exposure and Swingline Exposure above cannot, or can only partially, be so reallocated to Non-Defaulting Lenderseffected, whether by reason of the first proviso in Section 2.16(c)(i) above or otherwise, then the Borrower shall within two one (1) Business Days Day following notice by the Administrative Agent (x) first, prepay cash collateralize such Swingline Defaulting Lender’s LC Exposure (after giving pro forma effect to any partial reallocation pursuant to clause (iA) above) and (y) second, Cash Collateralize such Defaulting Lender’s Letter of Credit Exposure (after giving pro forma effect to any partial reallocation pursuant to clause (i) above), in accordance with the procedures set forth in Section 3.8 2.08(j) for so long as such Letter of Credit LC Exposure is outstanding, outstanding and the relevant Defaulting Lender remains a Defaulting Lender;
(iiiC) if the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(c), 4.03 then the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c3.05(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Letter of Credit LC Exposure is Cash Collateralized, cash collateralized;
(ivD) if the Letter of Credit applicable LC Exposure of the Non-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(c4.03(c), then the fees payable to the Lenders pursuant to Section 4.1(c3.05(a) and Section 3.05(b) shall be adjusted in accordance with such Non-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to such Defaulting Lender’s Letter of Credit Exposure during the period that such Defaulting Lender’s Letter of Credit Exposure is reallocated, or Applicable Percentages; or
(vE) if any Defaulting Lender’s Letter of Credit LC Exposure is neither Cash Collateralized cash collateralized nor reallocated pursuant to the requirements of this Section 2.16(c4.03(c)(iii), then, without prejudice to any rights or remedies of the Letter of Credit Issuer Issuing Bank or any Lender hereunder, all commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) under Section 3.05(a) and letter of credit fees payable under Section 4.1(c3.05(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure shall be payable to the Letter of Credit Issuer Issuing Bank until such Letter of Credit LC Exposure is Cash Collateralized cash collateralized and/or reallocated;
(d) (i) the Letter of Credit Issuer will not be required to issue any new Letter of Credit or amend any outstanding Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the Letter of Credit Issuer is reasonably satisfied that any exposure that would result from the exposure to such Defaulting Lender is eliminated or fully covered by the Revolving Credit Commitments of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof in accordance with the requirements of Section 2.16(c) above or otherwise in a manner reasonably satisfactory to the Letter of Credit Issuer; and.
Appears in 2 contracts
Sources: Credit Agreement (QR Energy, LP), Credit Agreement (QR Energy, LP)
Defaulting Lenders. 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 unused portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a§2.4(f);
(b) the Commitment of and the Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders or any other requisite Lenders have taken or may take any action hereunder (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 13.1§25); provided that (i) any waiver, amendment or modification requiring that increases the consent Commitment of a Defaulting Lender, forgives all Lenders or each affected Lender which affects such any portion of the principal amount of any Loan or Reimbursement Obligation or interest thereon owing to a Defaulting Lender, reduces the Applicable Margin on the underlying interest rate owing to a Defaulting Lender differently than other affected Lenders or extends the Maturity Date shall require the consent of such Defaulting Lender and (ii) the Commitment of any Defaulting Lender may not be increased or extended without the consent of such Lender;
(c) if any Swingline Exposure or Letter of Credit unfunded LC Exposure exists at the time a such Lender becomes a Defaulting Lender, then Lender then:
(i) so long as the conditions set forth in §11 are satisfied at the time of such reallocation (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), all or any part of such Letter of Credit the Swingline Exposure and unfunded LC Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata in accordance with their respective Commitment Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Commitment Percentage; provided that Exposures plus such Defaulting Lender’s Swingline Exposure and unfunded LC Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments and (Ay) each Nonsuch reallocation does not cause a non-Defaulting Lender’s Revolving Credit Exposure may not in any event to exceed the Revolving Credit Commitment of such Non-Defaulting Lender as in effect at the time of such reallocation and (B) subject to Section 13.21, neither such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Letter of Credit Issuer, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, its Commitment;
(ii) to if the extent that all or any portion reallocation described in clause (the “unreallocated portion”i) of the Defaulting Lender’s Letter of Credit Exposure and Swingline Exposure above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(c)(i) above or otherwiseeffected, the Borrower shall (x) within two Business Days following notice by the Administrative Agent (x) first, 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 Fronting Bank only the Borrower’s obligations corresponding to such Defaulting Lender’s unfunded LC Exposure (after giving pro forma 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 pro forma effect to any partial reallocation pursuant to clause (i) above), in accordance with the procedures set forth in Section §3.8 for so long as such Letter of Credit unfunded LC Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s Letter of Credit unfunded LC Exposure pursuant to the requirements of this Section 2.16(c)clause (ii) above, the Borrower shall not be required to pay any fees, and such fees shall not accrue, to such Defaulting Lender pursuant to Section 4.1(c) §3.6 with respect to such Defaulting Lender’s Letter of Credit unfunded LC Exposure during the period such Defaulting Lender’s Letter of Credit unfunded LC Exposure is Cash Collateralized, cash collateralized;
(iv) if the Letter of Credit unfunded LC Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(c)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(c) §3.6 shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Revolving Credit reallocated Commitment Percentages and the Borrower shall not be required to pay Percentages; and
(v) if all or any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to portion of such Defaulting Lender’s Letter of Credit Exposure during the period that such Defaulting Lender’s Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Letter of Credit unfunded LC Exposure is neither Cash Collateralized reallocated nor reallocated cash collateralized pursuant to the requirements of this Section 2.16(c)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the Letter of Credit Issuer Fronting Bank or any other Lender hereunder, all fees 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 §2.4(f) and Letter of Credit Fees payable under Section 4.1(c) §3.6 with respect to such Defaulting Lender’s Letter of Credit unfunded LC Exposure shall be payable to the Letter of Credit Issuer Fronting Bank until and to the extent that such Letter of Credit unfunded LC Exposure is Cash Collateralized reallocated and/or reallocated;cash collateralized; and
(d) (i) so long as such Lender is a Defaulting Lender, the Letter of Credit Issuer will Swing Lender shall not be required to issue fund any new Swing Loan and the Fronting Bank shall not be required to issue, amend or increase any Letter of Credit, unless the related exposure to the Swing Lender and the Defaulting Lender’s then outstanding unfunded LC 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 §4.12(c), and participating interests in any newly made Swing Loan or any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with §4.12(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 date hereof and for so long as such event shall continue, the Swing Lender shall not be required to fund any Swing Loan and the Fronting Bank shall not be required to issue, amend or amend increase any outstanding Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereofCredit, unless the Letter of Credit Issuer is reasonably satisfied that any related exposure that would result from and the exposure to such Defaulting Lender is eliminated or fully Lender’s then outstanding unfunded LC Exposure will be 100% covered by the Revolving Credit Commitments of the Nonnon-Defaulting Lenders or by Cash Collateralization the Swing Lender or the Fronting Bank, as the case may be, shall have entered into arrangements with the Borrower or such Lender, satisfactory to the Swing Lender or the Fronting Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the Borrower, the Swing Lender and the Fronting Bank each agrees that a combination thereof Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and unfunded LC 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 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 the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with the requirements of Section 2.16(c) above or otherwise in a manner reasonably satisfactory to the Letter of Credit Issuer; andits Commitment Percentage.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Mack Cali Realty L P), Revolving Credit Agreement (Mack Cali Realty L P)
Defaulting Lenders. 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 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 Section 4.1(a2.13(a);
(b) the Revolving Total Commitment of and the Revolving Credit Total Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders or any other requisite Lenders have taken or may take any action hereunder (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 13.19.02); provided provided, that this clause (ib) any waivershall not apply to the vote of a Defaulting Lender in the case of an amendment, amendment waiver or other modification requiring the consent of all Lenders or each Lender affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lender and (ii) the Commitment of any Defaulting Lender may not be increased or extended without the consent of such Lenderthereby;
(c) if any Swingline Exposure or Letter of Credit LC Exposure exists at the time a such Lender becomes a Defaulting Lender, then Lender then:
(i) so long as no Event of Default shall have occurred and be continuing, all or any part of such Letter of Credit the LC Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata that are Revolving Lenders in accordance with their respective Applicable Revolving Credit Commitment Percentage; provided that Percentages but only to the extent (Ax) each Nonthe sum of all non-Defaulting Lenders’ Revolving Total Exposures plus such Defaulting Lender’s LC Exposure does not exceed the total of all non-Defaulting Lenders’ Revolving Total Commitments and (y) the sum of any non-Defaulting Lender’s Revolving Credit Total Exposure may not in any event exceed the plus its Applicable Revolving Credit Commitment Percentage of such Non-Defaulting Lender as in effect at the time of Lenders’ LC Exposure does not exceed such reallocation and (B) subject to Section 13.21, neither such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Letter of Credit Issuer, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Nonnon-Defaulting Lender, ’s Revolving Total Commitment;
(ii) to if the extent that all or any portion reallocation described in clause (the “unreallocated portion”i) of the Defaulting Lender’s Letter of Credit Exposure and Swingline Exposure above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(c)(i) above or otherwiseeffected, the Borrower shall within two one Business Days Day following notice by the Administrative Agent (x) first, prepay cash collateralize for the benefit of the Issuing Banks only the Borrower’s obligations corresponding to such Swingline Defaulting Lender’s LC Exposure (after giving pro forma 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 pro forma effect to any partial reallocation pursuant to clause (i) above), in accordance with the procedures set forth in Section 3.8 2.05(k) for so long as such Letter of Credit LC Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(c)clause (ii) above, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c2.13(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Letter of Credit LC Exposure is Cash Collateralized, cash collateralized;
(iv) if the Letter of Credit LC Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(c)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(c2.13(a) and (b) shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Applicable Revolving Credit Commitment Percentages and the Borrower shall not be required to pay Percentages; and
(v) if all or any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to portion of such Defaulting Lender’s Letter of Credit Exposure during the period that such Defaulting Lender’s Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Letter of Credit LC Exposure is neither Cash Collateralized reallocated nor reallocated cash collateralized pursuant to the requirements of this Section 2.16(c)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the Letter of Credit Issuer Issuing Banks or any other Revolving Lender hereunder, all fees payable under Section 4.1(c2.13(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure shall be payable to the Letter of Credit Issuer applicable Issuing Bank until and to the extent that such Letter of Credit LC Exposure is Cash Collateralized reallocated and/or reallocated;cash collateralized; and
(d) (i) the Letter of Credit Issuer will so long as such Lender is a Defaulting Lender, each Issuing Bank shall not be required to issue issue, amend or increase any new Letter of Credit or amend any outstanding Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereofCredit, unless the Letter of Credit Issuer it is reasonably satisfied that any the related exposure that would result from and the exposure to such Defaulting Lender is eliminated or fully Lender’s then outstanding LC Exposure will be 100% covered by the Revolving Credit Total Commitments of the Nonnon-Defaulting Lenders or and/or cash collateral will be provided by Cash Collateralization or a combination thereof the Borrower in accordance with the requirements Section 2.21(c), and participating interests in any newly issued or increased Letter of Section 2.16(c) above or otherwise Credit shall be allocated among non-Defaulting Lenders that are Revolving Lenders in a manner reasonably consistent with Section 2.21(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to a Lender Parent of any Revolving Lender shall occur following the date hereof and for so long as such event shall continue or (ii) the applicable Issuing Bank has a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, such Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless such Issuing Bank shall have entered into arrangements with the Borrower or such Lender, satisfactory to such Issuing Bank, to defease any risk to it in respect of such Lender hereunder. In the Letter event that the Administrative Agent, the Borrower, and the Issuing Banks each agrees that a Defaulting Lender has adequately remedied all matters that caused such Revolving Lender to be a Defaulting Lender, then the LC Exposure of Credit Issuer; andthe Revolving Lenders shall be readjusted to reflect the inclusion of such Lender’s Revolving Total Commitment and on such date such Lender shall purchase at par such of the Revolving Total Loans of the other Revolving Lenders as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Revolving Total Loans in accordance with its Applicable Revolving Percentage.
Appears in 2 contracts
Sources: Credit Agreement (Huntington Ingalls Industries, Inc.), Credit Agreement (Huntington Ingalls Industries, Inc.)
Defaulting Lenders. 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 Commitment Fees shall cease to accrue from and after the time such Lender becomes a Defaulting Lender on the unfunded unused portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a2.11(a);
(b) if such Defaulting Lender is an Issuing Bank, fronting fees shall cease to accrue from and after the time such Lender becomes a Defaulting Lender on the LC Exposure attributable to Letters of Credit issued by such Issuing Bank pursuant to Section 2.11(b)(ii);
(c) the Commitment of and the Revolving Credit Exposure Exposure, if any, of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders or any other requisite Lenders have taken or may take any action hereunder under this Agreement (including any consent to any amendment amendment, waiver or waiver modification pursuant to Section 13.110.02); , provided that (i) any waiveramendment, amendment waiver or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected Lenders or that would (i) change the percentage of Commitments or of the aggregate unpaid principal amount of the Loans or LC Exposures, or the number of Lenders, that shall be required for the Lenders or any of them to take any action hereunder, (ii) amend this Section 2.21 or Section 10.02 in a manner which affects such Defaulting Lender differently than other Lenders and is adverse to such Defaulting Lender, (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 precedent, 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 Loans made by such Defaulting Lender or any LC Disbursements or (v) postpone the scheduled date for any payment of principal of, or interest on, the Loans made by such Defaulting Lender or any LC Disbursements, shall in each case require the consent of such Defaulting Lender and (ii) the Commitment of any which consent shall be deemed to have been given if such Defaulting Lender may not be increased or extended without the fails to respond to a written request for such consent within 30 days after receipt of such Lenderwritten request);
(cd) if any Swingline Exposure or Letter of Credit LC Exposure exists at the time a such Lender becomes a Defaulting Lender or at any time such Lender remains a Defaulting Lender, then then:
(i) (x) all or any part of such Letter of Credit LC Exposure of such Defaulting Lender and such Swingline comprising Global Tranche LC Exposure of such Defaulting Lender will, subject to the limitation in the proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Global Tranche Lenders that are Non-Defaulting Lenders pro rata in accordance with their respective Revolving Credit Commitment Percentage; provided that Adjusted Global Tranche Percentages but only to the extent (Aa) each the sum of any such Non-Defaulting Lender’s Revolving Global Tranche Credit Exposure may plus its Adjusted Global Tranche Percentage of such Defaulting Lender’s Global Tranche LC Exposure does not in any event exceed the Revolving Credit Commitment of such Non-Defaulting Lender as in effect at the time of such reallocation Lender’s Global Tranche Commitment and (Bb) subject to Section 13.21, neither the sum of all such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver Lenders’ Global Tranche Credit Exposures plus such Defaulting Lender’s Global Tranche LC Exposure does not exceed the total of all Non-Defaulting Lenders’ Global Tranche Credit Commitments (it being understood that such LC Exposure shall not be reallocated after the Commitments are terminated on the Maturity Date) and (y) all or release any part of such LC Exposure comprising US/UK Tranche LC Exposure shall be reallocated among the US/UK Tranche Lenders that are Non-Defaulting Lenders in accordance with their respective Adjusted US/UK Tranche Percentages but only to the extent (a) the sum of any claim the Borrower, the Administrative Agent, the Letter of Credit Issuer, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, ’s US/UK Tranche Credit Exposure plus its Adjusted US/UK Tranche Percentage of such Defaulting Lender’s US/UK Tranche LC Exposure does not exceed such Non-Defaulting Lender’s US/UK Tranche Commitment and (b) the sum of all such Non-Defaulting Lenders’ US/UK Tranche Credit Exposures plus such Defaulting Lender’s US/UK Tranche LC Exposure does not exceed the total of all Non-Defaulting Lenders’ US/UK Tranche Credit Commitments (it being understood that such LC Exposure shall not be reallocated after the Commitments are terminated on the Maturity Date);
(ii) to if the extent that all or any portion reallocation described in clause (the “unreallocated portion”i) of the Defaulting Lender’s Letter of Credit Exposure and Swingline Exposure above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(c)(i) above or otherwiseeffected, the Borrower Borrowers shall within two five Business Days following notice by the Administrative Agent (x) first, prepay cash collateralize such Swingline Defaulting Lender’s LC Exposure (after giving pro forma 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 pro forma effect to any partial reallocation pursuant to clause (i) above), in accordance with the procedures set forth in Section 3.8 2.04(k) for so long as such Letter of Credit LC Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes Borrowers cash collateralize any portion of such Defaulting Lender’s Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(c2.21(d), the Borrower Borrowers shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c2.11(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure (and such fees shall cease to accrue with respect to such Defaulting Lender’s LC Exposure) during the period such Defaulting Lender’s Letter of Credit LC Exposure is Cash Collateralized, cash collateralized;
(iv) if the Letter of Credit LC Exposure of the Non-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(c2.21(d), then the fees payable to the Lenders pursuant to Section 4.1(cSections 2.11(a) and 2.11(b) shall be adjusted in accordance with such Non-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to such Defaulting Lender’s Letter of Credit Exposure during the period that such Defaulting Lender’s Letter of Credit Exposure is reallocated, or Adjusted Tranche Percentages; and
(v) if any Defaulting Lender’s Letter of Credit LC Exposure is neither Cash Collateralized nor not reallocated pursuant to the requirements of this Section 2.16(c2.21(d), then, without prejudice to any rights or remedies of the Letter of Credit Issuer any Issuing Bank or any Lender hereunder, all letter of credit fees payable under Section 4.1(c2.11(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure shall be payable to the Letter of Credit Issuer applicable Issuing Bank(s) until such Letter of Credit LC Exposure is Cash Collateralized and/or reallocated;
(de) (if) the so long as any Lender is a Defaulting Lender, no Issuing Bank shall be required to issue, renew extend or increase any Letter of Credit Issuer will not be required to issue any new Letter of Credit or amend any outstanding Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the Letter of Credit Issuer is reasonably satisfied that any exposure such Defaulting Lender’s LC Exposure that would result from such newly issued, renewed, extended or increased Letter of Credit has been or would be, at the exposure to time of such Defaulting Lender is eliminated issuance, renewal, extension or increase, fully covered by the Revolving Credit Commitments of the allocated among Non-Defaulting Lenders pursuant to Section 2.21(d)(i) or fully cash collateralized by Cash Collateralization or a combination thereof in accordance with the requirements of Borrowers pursuant to Section 2.16(c) above or otherwise in a manner reasonably satisfactory to the Letter of Credit Issuer; and2.21(d)(ii);
Appears in 2 contracts
Sources: Credit Agreement (Molson Coors Beverage Co), Credit Agreement (Molson Coors Beverage Co)
Defaulting Lenders. 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 Commitment Commitments of such Defaulting Lender pursuant to Section 4.1(a2.12(a);
(b) the aggregate principal amount of Loans, Revolving L/C Exposures, Swingline Exposures and Available Unused Commitment of and the Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, Required Lenders, Majority Lenders or the Required Lenders or any other requisite affected Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 13.19.08); provided that (i) 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 Lender, (ii) the Commitment of any such Defaulting Lender may not be increased or extended without the consent of such Defaulting Lender and (iii) any amendment that reduces the principal amount of, rate of interest on, or the final maturity of, any Loan made by such Defaulting Lender, shall require the consent of such Defaulting Lender;
(c) if any Swingline Exposure or Letter of Credit Revolving L/C Exposure exists at the time a Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Letter of Credit Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the proviso below, automatically or Revolving L/C Exposure shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata in accordance with their respective Revolving Facility Percentages but only to the extent such reallocation does not cause the aggregate Revolving Facility Credit Commitment Percentage; provided that (A) each NonExposure of any non-Defaulting Lender to exceed such non-Defaulting Lender’s Revolving Credit Exposure may not in any event exceed the Revolving Credit Commitment of such Non-Defaulting Lender as in effect at the time of such reallocation and (B) subject to Section 13.21, neither such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Letter of Credit Issuer, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, Facility Commitment; and
(ii) to if the extent that all or any portion reallocation described in clause (the “unreallocated portion”i) of the Defaulting Lender’s Letter of Credit Exposure and Swingline Exposure above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(c)(i) above or otherwiseeffected, the Borrower shall within two five Business Days following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize such Defaulting Lender’s Revolving L/C Exposure (after giving pro forma 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 pro forma effect to any partial reallocation pursuant to clause (i) above), in accordance with the procedures set forth in Section 3.8 2.05(j) for so long as such Letter of Credit Revolving L/C Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s Letter of Credit Revolving L/C Exposure pursuant to the requirements of this Section 2.16(c2.22(c)(ii)(y), the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c) 2.12 with respect to such Defaulting Lender’s Letter of Credit Revolving L/C Exposure during the period such Defaulting Lender’s Letter of Credit Revolving L/C Exposure is Cash Collateralized, cash collateralized;
(iv) if the Letter of Credit Swingline Exposure or Revolving L/C Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(c2.22(c)(i), then the fees payable to the Lenders pursuant to Section 4.1(c) 2.12 shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to such Defaulting Lender’s Letter of Credit Exposure during the period that such Defaulting Lender’s Letter of Credit Exposure is reallocated, or Facility Percentage; and
(v) if any Defaulting Lender’s Letter of Credit Revolving L/C Exposure is neither Cash Collateralized cash collateralized nor reallocated pursuant to the requirements of this Section 2.16(c2.22(c)(i) or (ii), then, without prejudice to any rights or remedies of the Letter of Credit Issuer Issuing Bank or any 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 Revolving L/C Commitment that was utilized by such Revolving L/C Exposure) and all Revolving L/C Participation Fees payable under Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Letter of Credit Revolving L/C Exposure shall be payable to the Letter of Credit Issuer applicable Issuing Bank until such Letter of Credit Exposure Revolving L/C exposure is Cash Collateralized and/or cash collateralized and / or reallocated;
(d) (i) the Letter of Credit Issuer will not so long as any Lender is a Defaulting Lender, no Swingline Lender shall be required to issue fund any new Swingline Loan and no Issuing Bank shall be required to issue, amend or increase any Revolving Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Revolving Facility Commitments of the non-Defaulting Lenders or cash collateral will be provided by the Borrower in accordance with Section 2.22(c), and participating interests in any such newly issued or increased Revolving Letter of Credit or amend newly made Swingline Loan shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.22(c)(i) (and Defaulting Lenders shall not participate therein); and
(e) Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of such Defaulting Lender shall be applied at such time or times as may be determined by the Administrative Agent as follows: (i) first, to the payment of any outstanding amounts owing by such Defaulting Lender to the Administrative Agent hereunder, (ii) second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Issuing Bank or Swingline Lender, (iii) third, as the Borrower may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which that Defaulting Lender has failed to fund its portion thereof as required by this Agreement, (iv) fourth, if so determined by the Administrative Agent or requested by an Issuing Bank 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 Revolving Letter of Credit Credit, (v) fifth, to increase the face amount thereofpayment of any amounts owing to the Lenders or an Issuing Bank or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender or such Issuing Bank or Swingline Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, alter (vi) sixth, so long as no Default or Event of Default exists, to the drawing terms thereunder or extend payment of any amounts owing to the expiry date thereofBorrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against that Defaulting Lender as a result of that Defaulting Lender’s breach of its obligations under this Agreement and (vii) seventh, unless the Letter of Credit Issuer is reasonably satisfied that any exposure that would result from the exposure to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction, provided, with respect to this clause (vii), that if such payment is eliminated or fully covered by the Revolving Credit Commitments (x) a prepayment of the Nonprincipal amount of any Loans in respect of which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 2.11 are satisfied, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Lender. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by Cash Collateralization a Defaulting Lender or to post cash collateral pursuant to Section 2.05(j) shall be deemed paid to and redirected by that Defaulting Lender, and each Lender irrevocably consents hereto.
(f) In the event that the Administrative Agent, the Borrower, each Issuing Bank and each Swingline Lender each agrees that a combination thereof 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 the requirements of Section 2.16(c) above or otherwise in a manner reasonably satisfactory to the Letter of Credit Issuer; andits Revolving Facility Percentage.
Appears in 2 contracts
Sources: Credit Agreement (Crestwood Midstream Partners LP), Credit Agreement (Crestwood Equity Partners LP)
Defaulting Lenders. 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 pursuant to Section 2.10(a) shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(athe extent, and during the period in which, such Lender is a Defaulting Lender (and the Borrower shall not be required to pay any such commitment fee that otherwise would have accrued and been required to have been paid to such Defaulting Lender to the extent and during the period in which such Lender is a Defaulting Lender);
(b) the Commitment of and the Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, two-thirds of the Lenders, two-thirds of the Lenders of a Class, the Required Lenders or the Required Lenders or any other requisite Lenders of a Class have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment or waiver pursuant to Section 13.19.02, except for any amendment or waiver described in Section 9.02(b)(i), (ii), (iii) or (iv)); provided that (i) any waiver, amendment or modification requiring the consent of all Lenders, two-thirds of the Lenders or each affected Lender which affects such Defaulting Lender differently than other Lenders or affected Lenders (as applicable) shall require the consent of such Defaulting Lender and (ii) the Commitment of any Defaulting Lender may not be increased or extended without the consent of such Lender;.
(c) if any Swingline Exposure or Letter of Credit LC Exposure exists at the time a Multicurrency Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Letter of Credit LC Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Multicurrency Lenders pro rata in accordance with their respective Revolving Applicable Multicurrency Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Multicurrency Credit Commitment Percentage; provided that Exposures plus such Defaulting Lender’s LC Exposure does not exceed the total of all non-Defaulting Lenders’ Multicurrency Commitments, (Ay) each Nonno non-Defaulting Lender’s Revolving Multicurrency Credit Exposure may not in any event will exceed the Revolving Credit Commitment of such Non-Defaulting Lender as in effect at the time of such reallocation Lender’s Multicurrency Commitment, and (Bz) subject to the conditions set forth in Section 13.21, neither 4.02 are satisfied at such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim time (and unless the BorrowerBorrower has notified the Administrative Agent at such time, the Administrative Agent, the Letter of Credit Issuer, the Swingline Lender or any other Lender may Borrower shall be deemed to have against represented and warranted that such Defaulting Lender or cause conditions are satisfied at such Defaulting Lender to be a Non-Defaulting Lender, time);
(ii) to if the extent that all or any portion reallocation described in clause (the “unreallocated portion”i) of the Defaulting Lender’s Letter of Credit Exposure and Swingline Exposure above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(c)(i) above or otherwiseeffected, the Borrower shall shall, without prejudice to any right or remedy available to it hereunder or under law, within two three Business Days following notice by the Administrative Agent (x) firstAgent, prepay cash collateralize such Swingline Defaulting Lender’s LC Exposure (after giving pro forma 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 pro forma effect to any partial reallocation pursuant to clause (i) above), in accordance with the procedures set forth in Section 3.8 2.04(k) for so long as such Letter of Credit LC Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(c)clause (ii) above, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c2.10(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Letter of Credit LC Exposure is Cash Collateralized, cash collateralized;
(iv) if the Letter of Credit LC Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(c)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(c2.10(a) and Section 2.10(b) shall be adjusted in accordance with such Nonnon-Defaulting Multicurrency Lenders’ Revolving Credit Commitment Applicable Multicurrency Percentages and the Borrower shall not be required to pay any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect in effect after giving effect to such Defaulting Lender’s Letter of Credit Exposure during the period that such Defaulting Lender’s Letter of Credit Exposure is reallocated, or reallocation;
(v) if any Defaulting Lender’s Letter of Credit LC Exposure is neither Cash Collateralized cash collateralized nor reallocated pursuant to the requirements of this Section 2.16(c2.17(c), then, without prejudice to any rights or remedies of the Letter of Credit Issuer Issuing Bank or any 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 LC Exposure) and letter of credit fees payable under Section 4.1(c2.10(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure shall be payable to the Letter of Credit Issuer Issuing Bank until such Letter of Credit LC Exposure is Cash Collateralized cash collateralized and/or reallocated;; and
(vi) subject to Section 9.16, no reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Lender having become a Defaulting Lender, including any claim of a non-Defaulting Lender as a result of such non-Defaulting Lender’s increased exposure following such reallocation.
(d) (i) so long as any Multicurrency Lender is a Defaulting Lender, the Letter of Credit Issuer will Issuing Bank shall not be required to issue issue, amend or increase any new Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Multicurrency Commitments of the non-Defaulting Multicurrency Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 2.17(c), and participating interests in any such newly issued or increased Letter of Credit or amend any outstanding Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the Letter of Credit Issuer is reasonably satisfied that any exposure that would result from the exposure to such Defaulting Lender is eliminated or fully covered by the Revolving Credit Commitments of the Nonshall be allocated among non-Defaulting Lenders or by Cash Collateralization or in a combination thereof manner consistent with Section 2.17(c)(i) (and Defaulting Lenders shall not participate therein). In the event that the Administrative Agent and the Borrower agree in writing that a Defaulting Lender that is a Dollar Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then, on the date of such agreement, such Lender shall purchase at par such of the Loans made to each Borrower of the other Lenders as the Administrative Agent shall determine may be necessary in order for the Lenders to hold such Loans in accordance with their applicable Dollar Percentage in effect immediately after giving effect to such agreement. In the requirements event that the Administrative Agent, the Borrower and the Issuing Bank each agrees in writing that a Defaulting Lender that is a Multicurrency Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then, on the date of such agreement, such Lender shall no longer be deemed a Defaulting Lender, the Borrower shall no longer be required to cash collateralize any portion of such Lender’s LC Exposure cash collateralized pursuant to Section 2.16(c2.17(c)(ii) above or otherwise above, the LC Exposure of the Multicurrency Lenders shall be readjusted to reflect the inclusion of such Lender’s Multicurrency Commitment and such Lender shall purchase at par the portion of the Loans of the other Multicurrency Lenders as the Administrative Agent shall determine may be necessary in a manner reasonably satisfactory order for such Lender to the Letter of Credit Issuer; andhold such Loans in accordance with its Applicable Multicurrency Percentage in effect immediately after giving effect to such agreement.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Barings Capital Investment Corp), Senior Secured Revolving Credit Agreement (Barings BDC, Inc.)
Defaulting Lenders. 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 the Facility Fee shall cease to accrue pursuant to Section 2.12(a) on the unfunded portion unused amount of the Commitment of such Defaulting Lender pursuant to Section 4.1(a)Lender;
(b) the Commitment of and the Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 13.19.02); provided that (i) any waiveramendment, amendment waiver or other modification requiring the consent of all Lenders or each all Lenders affected Lender which affects such Defaulting Lender differently than other affected Lenders thereby shall require the consent of such Defaulting Lender and (ii) in accordance with the Commitment of any Defaulting Lender may not be increased or extended without the consent of such Lenderterms hereof;
(c) if any Swingline Exposure or Letter of Credit LC Exposure exists at the time a such Lender becomes a Defaulting Lender, then Lender then:
(i) all or the Swingline Exposure (other than any part portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c) and, in the case of any Defaulting Lender that is a Swingline Lender, other than the portion of such Letter Swingline Exposure referred to in clause (b) of Credit the definition of such term) and LC Exposure of such Defaulting Lender and such Swingline Exposure of (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender will, subject to the limitation in the proviso below, automatically shall have funded its participation as contemplated by Sections 2.06(d) and 2.06(e)) shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Non-Defaulting Lenders pro rata in accordance with their respective Revolving Credit Commitment Percentage; provided Applicable Percentages but only to the extent that (A) the sum of all Non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure (in each case, excluding the portion thereof referred to above) does not exceed the sum of all Non-Defaulting Lenders’ Commitments and (B) such reallocation does not result in the Revolving Credit Exposure of any Non-Defaulting Lender exceeding such Non-Defaulting Lender’s Revolving Credit Exposure may not in any event exceed the Revolving Credit Commitment of such Non-Defaulting Lender as in effect at the time of such reallocation and (B) subject to Section 13.21, neither such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Letter of Credit Issuer, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, Commitment;
(ii) to if the extent that all or any portion reallocation described in clause (the “unreallocated portion”i) of the Defaulting Lender’s Letter of Credit Exposure and Swingline Exposure above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(c)(i) above or otherwiseeffected, the Borrower shall within two one Business Days Day following notice by the Administrative Agent (xA) first, prepay such Swingline Exposure (after giving pro forma effect to any partial reallocation pursuant to clause (i) above) and (y) second, Cash Collateralize the portion of such Defaulting Lender’s Letter of Credit Swingline Exposure (after giving pro forma effect other than any portion thereof referred to any partial reallocation pursuant to in the parenthetical in such clause (i)) abovethat has not been reallocated and (B) second, cash collateralize for the benefit of the Issuing Banks the portion of such Defaulting Lender’s LC Exposure (other than any portion thereof referred to in the parenthetical in such clause (i), ) that has not been reallocated in accordance with the procedures set forth in Section 3.8 2.05(j) for so long as such Letter of Credit LC Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(c)clause (ii) above, the Borrower shall not be required to pay any fees LC Participation Fees to such Defaulting Lender pursuant to Section 4.1(c2.11(b) with respect to such Defaulting Lender’s Letter portion of Credit Exposure during the period such Defaulting Lender’s Letter of Credit LC Exposure for so long as such Defaulting Lender’s LC Exposure is Cash Collateralized, cash collateralized;
(iv) if any portion of the Letter of Credit LC Exposure of the Non-such Defaulting Lenders Lender is reallocated pursuant to the requirements of this Section 2.16(c)clause (i) above, then the fees LC Participation Fees payable to the Lenders pursuant to Section 4.1(c2.11(b) shall be adjusted in accordance with to give effect to such Non-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay reallocation;
(v) if all or any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to portion of such Defaulting Lender’s Letter of Credit Exposure during the period that such Defaulting Lender’s Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Letter of Credit Swingline Exposure is neither Cash Collateralized reallocated nor reallocated reduced pursuant to the requirements of this Section 2.16(c)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the Letter of Credit Issuer any Swingline Lender or any other Lender hereunder, all fees Facility Fees that otherwise would have been payable under pursuant to Section 4.1(c2.11(a) to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment utilized by such Swingline Exposure) shall be payable to the Swingline Lenders (and allocated among them ratably based on the amount of such Defaulting Lender’s Swingline Exposure attributable to Swingline Loans made by each Swingline Lender) until and to the extent that such Swingline Exposure is reallocated and/or reduced to zero; and
(vi) 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 any Issuing Bank or any other Lender hereunder, all Facility Fees that otherwise would have been payable pursuant to Section 2.11(a) to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment utilized by such LC Exposure) and LC Participation Fees payable pursuant to Section 2.11(b) to such Defaulting Lender with respect to such Defaulting Lender’s Letter of Credit LC Exposure shall be payable to the Letter Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit Issuer issued by each Issuing Bank) until and to the extent that such Letter of Credit LC Exposure is Cash Collateralized reallocated and/or reallocated;cash collateralized; and
(d) (i) the Letter of Credit Issuer will not so long as such Lender is a Defaulting Lender, no Swingline Lender shall be required to issue fund any new Swingline Loan and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit Credit, unless, in each case, the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure or amend any outstanding Letter of Credit to increase the face amount thereofLC Exposure, alter the drawing terms thereunder or extend the expiry date thereofas applicable, unless the Letter of Credit Issuer is reasonably satisfied that any exposure that would result from the exposure to such Defaulting Lender is eliminated or will be fully covered by the Revolving Credit Commitments of the Non-Defaulting Lenders or and/or cash collateral provided by Cash Collateralization or a combination thereof the Borrower in accordance with Section 2.19(c), and participating interests in any such funded Swingline Loan or in any such issued, amended, reviewed or extended Letter of Credit will be allocated among the requirements of Section 2.16(c) above or otherwise Non-Defaulting Lenders in a manner reasonably satisfactory consistent with Section 2.19(c) (and such Defaulting Lender shall not participate therein). In the event that the Administrative Agent, the Borrower, each Issuing Bank and each Swingline Lender each agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Letter Swingline Exposure and LC Exposure of Credit Issuer; andthe 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 Revolving 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 Applicable Percentage.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Hess Midstream Partners LP), Revolving Credit Agreement (Hess Midstream Partners LP)
Defaulting Lenders. 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 Commitment Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a);
(b) the The Commitment of and the Revolving Credit Total Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, the Majority Lenders or the Required Lenders or any other requisite Borrowing Base 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 (i) any waiver, amendment or modification requiring the consent of all Lenders pursuant to Section 13.1 (other than Section 13.1(x)) or requiring the consent of each affected Lender which affects such Defaulting Lender differently than other affected Lenders pursuant to Section 13.1(i) or (ix), shall require the consent of such Defaulting Lender (which for the avoidance of doubt would include any change to the Maturity Date applicable to such Defaulting Lender, decreasing or forgiving any principal or interest due to such Defaulting Lender, any decrease of any interest rate applicable to Loans made by such Defaulting Lender (other than the waiving of post-default interest rates) and any increase in such Defaulting Lender’s Commitment) and (ii) any redetermination, whether an increase, decrease or affirmation, of the Borrowing Base shall occur without the participation of a Defaulting Lender, but the Commitment (i.e., the Commitment Percentage of any the Borrowing Base) of a Defaulting Lender may not be increased or extended without the consent of such Defaulting Lender;; 715000788 12406500715000788 12406500
(c) if If any Swingline Exposure or Letter of Credit Exposure exists at the time a Lender becomes a Defaulting Lender, then (i) all or any part of such Swingline Exposure and Letter of Credit Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Non-Defaulting Lenders pro rata in accordance with their respective Revolving Credit Commitment PercentagePercentages; provided that (A) each Non-Defaulting Lender’s Revolving Credit Total Exposure may not in any event exceed the Revolving Credit Commitment Percentage of the Loan Limit of such Non-Defaulting Lender as in effect at the time of such reallocation and (B) subject to Section 13.21, neither such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Letter of Credit Issuer, the Swingline Lender Issuers or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, (ii) to the extent that all or any portion (the “unreallocated portion”) of the Defaulting Lender’s Swingline Exposure or Letter of Credit Exposure and Swingline Exposure cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(c)(i2.15(c)(i) above or otherwise, the Borrower shall within two Business Days following notice by the Administrative Agent (x) first, prepay such Swingline Exposure (after giving pro forma effect to any partial reallocation pursuant to clause (i) above) and (y) second, Cash Collateralize for the benefit of the applicable Letter of Credit Issuer’ only the Borrower’s obligations corresponding to such Defaulting Lender’s Letter of Credit Exposure (after giving pro forma effect to any partial reallocation pursuant to clause (i) above), in accordance with the procedures set forth in Section 3.8 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 the requirements of this Section 2.16(c2.15(c), the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c4.1(b) with respect to such Defaulting Lender’s 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 the requirements of this Section 2.16(c2.15(c), then the fees Letter of Credit Fees payable to for the account of the Lenders pursuant to Section 4.1(c4.1(b) shall be adjusted in accordance with such Non-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay any fees Swingline or Letter of Credit Fees to the Defaulting Lender pursuant to Section 4.1(c4.1(b) with respect to such Defaulting Lender’s Letter of Credit Exposure during the period that such Defaulting Lender’s Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Letter of Credit Exposure is neither Cash Collateralized nor reallocated pursuant to the requirements of this Section 2.16(c2.15(c), then, without prejudice to any rights or remedies of the Letter of Credit Issuer or any Lender hereunder, all fees Letter of Credit Fees payable under Section 4.1(c4.1(b) with respect to 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;
(d) (i) So long as any Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and no Letter of Credit Issuer will not be required to issue any new Letter of Credit or amend any outstanding Letter of Credit to increase the face amount Stated Amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the Letter of Credit Issuer is reasonably satisfied that any exposure that would result from the exposure to such Defaulting Lender is eliminated or fully covered by the Revolving Credit Commitments of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof in accordance with the requirements of Section 2.16(cclause (c) above or otherwise in a manner reasonably satisfactory to the Letter of Credit Issuer, and participating interests in any such newly issued or increased Letter of Credit or newly made Swingline Loan shall be allocated among Non-Defaulting Lenders in a manner consistent with Section 2.15(c)(i) (and Defaulting Lenders shall not participate therein); and
(e) If the Borrower, the Administrative Agent, the Swingline Lender and each Letter of Credit Issuer agree in writing in their discretion that a Lender that is a Defaulting Lender should no longer be deemed to be a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon, as of the effective date specified in such notice and subject to any conditions set forth therein, such Lender will cease to be a Defaulting Lender and will be a Non-Defaulting Lender and any applicable Cash Collateral shall be promptly returned to the Borrower and any Letter of Credit Exposure of such Lender reallocated pursuant to Section 2.15(c) shall be reallocated back to such Lender; provided that, except to the extent 715000788 12406500715000788 12406500 otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Non-Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from such Lender’s having been a Defaulting Lender.
(f) Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of that Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Section 11 or otherwise, and including any amounts made available to the Administrative Agent by that Defaulting Lender pursuant to Section 13.8), 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 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 each Letter of Credit Issuer and the Swingline Lender hereunder; third, as the Borrower may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which that Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fourth, if so determined by the Administrative Agent and the Borrower, to be held in a non-interest bearing deposit account and released in order to satisfy obligations of that Defaulting Lender to fund Loans under this Agreement; fifth, to the payment of any amounts owing to the Lenders, the Letter of Credit Issuers or the Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, such Letter of Credit Issuer or the Swingline Lender against that Defaulting Lender as a result of that Defaulting Lender’s breach of its obligations under this Agreement; sixth, so long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against that Defaulting Lender as a result of that Defaulting Lender’s breach of its obligations under this Agreement; and seventh, to that Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is a payment of the principal amount of any Loans or Unpaid Drawings, such payment shall be applied solely to pay the relevant Loans of, and Unpaid Drawings owed to, the relevant non-Defaulting Lenders on a pro rata basis prior to being applied in the manner set forth in this Section 2.15(f). 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 Section 3.8 shall be deemed paid to and redirected by that Defaulting Lender, and each Lender irrevocably consents hereto.
Appears in 2 contracts
Sources: Fifth Amendment and Waiver Agreement (Samson Resources Corp), Fifth Amendment and Waiver Agreement (Samson Resources Corp)
Defaulting Lenders. 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 daily unused amount of the Commitment of such Defaulting Lender pursuant to Section 4.1(a2.12(a);
(b) the Commitment of and the Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders or any other requisite Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 13.19.02); provided that (i) 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 (ii) any amendment or modification that increases, or extends the maturity of, such Defaulting Lender’s Commitment of any Defaulting Lender may not be increased or extended without shall require the consent of such Defaulting Lender;
(c) if any Swingline Exposure or Letter of Credit LC Exposure exists at the time a Lender becomes a Defaulting Lender, then Lender then:
(i) so long as no Default has occurred and is continuing: all or any part of such Letter of Credit the Swingline Exposure and LC Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata in accordance with their respective Applicable Percentages but only to the extent the sum of all non-Defaulting Lenders’ Revolving Credit Commitment Percentage; provided that (A) each Non-Exposures plus such Defaulting Lender’s Revolving Credit Swingline Exposure may and LC Exposure does not in any event exceed the Revolving Credit Commitment total of such Nonall non-Defaulting Lender as in effect at the time of such reallocation and (B) subject to Section 13.21, neither such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Letter of Credit Issuer, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, Lenders’ Revolving Commitments;
(ii) to if the extent that all or any portion reallocation described in clause (the “unreallocated portion”i) of the Defaulting Lender’s Letter of Credit Exposure and Swingline Exposure above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(c)(i) above or otherwiseeffected, the Borrower shall within two one (1) Business Days 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 pro forma 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 pro forma effect to any partial reallocation pursuant to clause (i) above), in accordance with the procedures set forth in Section 3.8 2.06(j) for so long as such Letter of Credit LC Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(c)clause (ii) above, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Letter of Credit LC Exposure is Cash Collateralized, cash collateralized;
(iv) if the Letter of Credit LC Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(c)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(c2.12(a) and Section 2.12(b) shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay Applicable Percentages; and
(v) if all or any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to portion of such Defaulting Lender’s Letter of Credit Exposure during the period that such Defaulting Lender’s Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Letter of Credit LC Exposure is neither Cash Collateralized reallocated nor reallocated cash collateralized pursuant to the requirements of this Section 2.16(c)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the Letter of Credit Issuer Issuing Bank or any other Lender hereunder, all letter of credit fees payable under Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure shall be payable to the Letter of Credit Issuer Issuing Bank until and to the extent that such Letter of Credit LC Exposure is Cash Collateralized reallocated and/or reallocated;cash collateralized; and
(d) (i) so long as any Lender is a Defaulting Lender, the Letter of Credit Issuer will Swingline Lender shall not be required to issue fund any new Swingline Loan and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit or amend any outstanding Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereofCredit, unless the Letter of Credit Issuer it is reasonably satisfied that any the related exposure that would result from and the exposure to such Defaulting Lender is eliminated or fully Lender’s then outstanding LC Exposure will be 100% covered by the Revolving Credit Commitments of the Nonnon-Defaulting Lenders or and/or cash collateral will be provided by Cash Collateralization or a combination thereof the Borrower in accordance with the requirements Section 2.21(c), and participating interests in any such newly made Swingline Loan or any newly issued or increased Letter of Section 2.16(c) above or otherwise Credit shall be allocated among non-Defaulting Lenders in a manner reasonably consistent with Section 2.21(c)(i) (and such Defaulting Lender shall 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) the Swingline Lender or any 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, the Swingline Lender shall not be required to fund any Swingline Loan and not Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless the Swingline Lender or the relevant Issuing Bank, as the case may be, shall have entered into arrangements with the Borrower or such Lender, satisfactory to the Letter Swingline Lender or the relevant Issuing Bank, as the case may be, to defease any risk to it in respect of Credit Issuer; andsuch Lender hereunder. In the event that the Administrative Agent, the Borrower, each Issuing Bank 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 Swingline Exposure and LC 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 the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage.
Appears in 2 contracts
Sources: Credit Agreement (Inergy Midstream, L.P.), Credit Agreement (Inergy Midstream, L.P.)
Defaulting Lenders. 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 under Section 4.3 shall cease to accrue on the unfunded that portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a)Lender’s Committed Sum that remains unfunded or which has not been included in any LC Exposure;
(b) the Committed Sum and Commitment of and the Revolving Credit Exposure Usage of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders or any other requisite Majority Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 13.114.10); , provided that (i) any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which adversely affects such Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lender and (ii) the Commitment of any Defaulting Lender may not be increased or extended without the consent of such Lender;.
(c) if any Swingline LC Exposure or Letter of Credit Swing Line Exposure exists at the time a Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Letter the contingent obligations of Credit Exposure Lenders in respect of such Defaulting Lender LC Exposure and such Swingline Swing Line Exposure of such Defaulting Lender will, subject to the limitation in the proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata in accordance with their respective Revolving Credit Pro Rata Part but only to the extent (a) the sum of all non-Defaulting Lenders’ Commitment Percentage; provided that (A) each Non-Usage plus such Defaulting Lender’s Revolving Credit LC Exposure may and Swing Line Exposure does not in any event exceed the Revolving Credit Commitment total of such Nonall non-Defaulting Lender as in effect at the time of such reallocation Lenders’ Committed Sums and (Bb) subject to Section 13.21, neither such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Letter of Credit Issuer, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting no Lender, ’s Commitment Usage exceeds its Committed Sum;
(ii) to if the extent that all or any portion reallocation described in clause (the “unreallocated portion”i) of the Defaulting Lender’s Letter of Credit Exposure and Swingline Exposure above cannot, or can only partially, be so reallocated to Non-Defaulting Lenderseffected, whether by reason of the first proviso in Section 2.16(c)(iBorrower shall, within one (1) above or otherwise, the Borrower shall within two Business Days Day following notice by Administrative Agent, (A) prepay the Administrative Agent Swing Line Borrowings and (xB) first, prepay cash collateralize such Swingline Defaulting Lender’s Pro Rata Part of the LC Exposure (after giving pro forma 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 pro forma effect in a manner reasonably satisfactory to any partial reallocation pursuant to clause (i) above), in accordance with the procedures set forth in Section 3.8 Administrative Agent for so long as such Letter of Credit LC Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(c3.20(c), the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c) 4.2 with respect to such cash collateralized portion of the Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Letter of Credit LC Exposure is Cash Collateralized, cash collateralized;
(iv) if the Letter of Credit LC Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(c3.20(c), then the fees payable to the Lenders pursuant to Section 4.1(c) 4.2 shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Revolving Credit Commitment Percentages and Pro Rata Part of the Borrower shall not be required to pay any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to such Defaulting Lender’s Letter of Credit Exposure during the period that such Defaulting Lender’s Letter of Credit Exposure is reallocated, or Facility Committed Sum; and
(v) if any Defaulting Lender’s Letter of Credit LC Exposure is neither Cash Collateralized cash collateralized nor reallocated pursuant to the requirements of this Section 2.16(c3.20(c), then, without prejudice to any rights or remedies of the Letter of Credit Issuer Administrative Agent or any Lender hereunder, all fees payable under to Lenders pursuant to Section 4.1(c) 4.2 with respect to such Defaulting Lender’s Letter of Credit LC Exposure that is neither cash collateralized nor reallocated shall be payable to the Letter of Credit Issuer Administrative Agent until such Letter of Credit LC Exposure is Cash Collateralized fully cash collateralized and/or reallocated;
(d) so long as any Lender is a Defaulting Lender, Administrative Agent shall not be (i) the Letter of Credit Issuer will not be required to issue fund any new Letter of Credit Swing Line Borrowing or amend any outstanding Letter of Credit (ii) required to issue, amend, renew, increase the face amount thereof, alter the drawing terms thereunder or extend any LC unless it is satisfied, in its reasonable discretion, that the expiry date thereofrelated exposure will be 100% covered by the Committed Sums of the non-Defaulting Lenders and/or cash collateral will be provided by Borrower in accordance with Section 3.20(c), unless the Letter of Credit Issuer is reasonably satisfied that and participating interests in any exposure that would result from the exposure such newly issued, amended, renewed, increased or extended LC or newly made Swing Line Borrowing shall be allocated among non-Defaulting Lenders in a manner consistent with Section 3.20(c)(i) (and Defaulting Lenders shall not participate therein); and
(e) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise) shall, in lieu of being distributed to such Defaulting Lender, be retained by Administrative Agent in a segregated account and subject to any applicable requirements of law, be applied (i) first, to the payment of any amounts owing by such Defaulting Lender to Administrative Agent hereunder, (ii) second, to the funding of cash collateralization of any participating interest in any LC in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by Administrative Agent, (iii) third, if so determined by Administrative Agent and Borrower, held in such account as cash collateral for future funding obligations of any Defaulting Lender under this Agreement, (iv) fourth, pro rata, to the payment of any amounts owing to Borrower or 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 breach of its obligations under this Agreement and (v) fifth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction, provided that if such payment is eliminated or fully covered by the Revolving Credit Commitments (x) a prepayment of the Nonprincipal amount of any Borrowing 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 Borrowings of all non-Defaulting Lenders or by Cash Collateralization or pro rata prior to being applied to the prepayment of any Borrowings of any Defaulting Lender. In the event that Administrative Agent and Borrower each agrees that a combination thereof Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then on such date the LC Exposure and Swing Line Exposure of Lenders shall be readjusted to reflect the inclusion of such Lender’s Committed Sum and on such date such Lender shall purchase at par such of the Borrowings of the other Lenders as Administrative Agent shall determine may be necessary in order for such Lender to hold such Borrowings in accordance with its Pro Rata Part. Except as expressly modified by this Section 3.20, the requirements of Section 2.16(c) above performance by Borrower under any Loan Paper shall not be excused or otherwise in modified as a manner reasonably satisfactory to the Letter result of Credit Issuer; andthis Section 3.20.
Appears in 2 contracts
Sources: Credit Agreement (Monro, Inc.), Credit Agreement (Monro Muffler Brake Inc)
Defaulting Lenders. 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 Commitment Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a)5.9;
(b) Such Defaulting Lender shall not have the Commitment right to vote on any issue on which voting is required (other than the matters provided in Section 12.1(a) requiring the consent of such affected Lender), and the Revolving Credit Exposure Commitments and the Revolving Credit Commitment Percentages in outstanding Revolving Credit Loans of such Defaulting Lender shall not be included in determining whether all the Majority Lenders or the Required Lenders or any other requisite Lenders have taken or may take any action hereunder (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 13.112.1); provided, that, except as otherwise provided that in Section 12.1, this clause (ib) any waivershall not apply to the vote of a Defaulting Lender in the case of an amendment, amendment waiver or other modification requiring the consent of all Lenders or of each Lender affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lender and (ii) the Commitment of any Defaulting Lender may not be increased or extended without the consent of such Lenderthereby;
(c) if any Swingline Exposure or Letter amount outstanding in respect of Letters of Credit or Swingline Exposure exists at the time a such Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Letter of the Revolving Credit Exposure Commitment Percentage of such Defaulting Lender in Letters of Credit and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata in accordance with their respective Revolving Credit Commitment Percentage; provided Percentages but only to the extent that (Ax) each Nonthe sum of all non-Defaulting Lenders’ Revolving Credit Commitment Percentages in Revolving Credit Loans and in Letters of Credit and Swingline Loans plus such Defaulting Lender’s Revolving Credit Commitment Percentage in Letters of Credit and Swingline Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments, (y) the conditions set forth in Section 7.2 are satisfied at such time (and, unless the Company shall have otherwise notified the Administrative Agent at such time, the Company shall be deemed to have represented and warranted that such conditions are satisfied at such time) and (z) to the extent such reallocation does not, as to any non-Defaulting Lender, cause such non-Defaulting Lender’s Revolving Credit Exposure may not in any event exceed the Loans, its Protective Advances, its Swingline Loans and its Revolving Credit Commitment of such Non-Defaulting Lender as Percentages in effect at the time of such reallocation and (B) subject to Section 13.21, neither such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Letter Letters of Credit Issuer, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, exceed its Revolving Credit Commitment;
(ii) to if the extent that all or any portion reallocation described in clause (the “unreallocated portion”i) of the Defaulting Lender’s Letter of Credit Exposure and Swingline Exposure above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(c)(i) above or otherwiseeffected, the Borrower Company shall within two one (1) Business Days Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and second, Cash Collateralize, for the benefit of the Issuing Lender, the Company’s obligations corresponding to such Defaulting Lender’s Revolving Credit Commitment Percentage in Letters of Credit (after giving pro forma 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 pro forma effect to any partial reallocation pursuant to clause (i) above), in accordance with the procedures set forth in Section 3.8 10.1 for so long as such Letter Defaulting Lender’s Revolving Credit Commitment Percentage in Letters of Credit Exposure is outstanding, ;
(iii) if the Borrower Company Cash Collateralizes any portion of such Defaulting Lender’s Letter of Credit Exposure Revolving L/C Obligations pursuant to the requirements of this Section 2.16(c)clause (ii) above, the Borrower Company shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c) 5.11 with respect to such Defaulting Lender’s Letter Revolving Credit Commitment Percentage in Letters of Credit Exposure during the period such Defaulting Lender’s Letter Revolving Credit Commitment Percentage in Letters of Credit Exposure is Cash Collateralized, ;
(iv) if the Letter Revolving Credit Commitment Percentage in Letters of Credit Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(c)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(c) 5.9 and Section 5.11 shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay Percentages; and
(v) if all or any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to portion of such Defaulting Lender’s Letter Revolving Credit Commitment Percentage in Letters of Credit Exposure during the period that such Defaulting Lender’s Letter of Credit Exposure is reallocated, neither reallocated nor Cash Collateralized pursuant to clause (i) or (vii) if any Defaulting Lender’s Letter of Credit Exposure is neither Cash Collateralized nor reallocated pursuant to the requirements of this Section 2.16(c)above, then, without prejudice to any rights or remedies of the Letter of Credit Issuer Issuing Lender or any other Lender hereunder, all Commitment Fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such Revolving Credit Commitment Percentage in Letters of Credit) and Letter of Credit fees payable under Section 4.1(c) 5.11 with respect to such Defaulting Lender’s Letter Revolving Credit Commitment Percentage in Letters of Credit Exposure shall be payable to the Letter Issuing Lender until and to the extent that such Revolving Credit Commitment Percentage in Letters of Credit Issuer until such Letter of Credit Exposure is reallocated and/or Cash Collateralized and/or reallocated;Collateralized; and
(d) (i) so long as such Lender is a Defaulting Lender, the Letter of Credit Issuer will Issuing Lender shall not be required to issue issue, amend or increase any new Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s Revolving Credit Commitment Percentage in then outstanding Letters of Credit will be 100% covered by the Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Company in accordance with Section 5.24(c), 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 5.24(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event or Bail-In Action with respect to the 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 outstanding Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereofCredit, unless the Letter Issuing Lender shall have entered into arrangements with the Company or such Lender, satisfactory to the Issuing Lender to defease any risk to it in respect of Credit Issuer is reasonably satisfied such Lender hereunder. In the event that any exposure the Administrative Agent, the Company, the Swingline Lender and the Issuing Lender each agrees that would result from the exposure to such a Defaulting Lender is eliminated or fully covered by has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and the L/C Participating Interest of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Revolving Credit Commitments and on such date such Lender shall purchase at par such of the Non-Defaulting Loans of the other Lenders or by Cash Collateralization or a combination thereof (other than the Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with the requirements of Section 2.16(c) above or otherwise in a manner reasonably satisfactory to the Letter of its Revolving Credit Issuer; andCommitments.
Appears in 2 contracts
Sources: Credit Agreement (NGL Energy Partners LP), Credit Agreement (NGL Energy Partners LP)
Defaulting Lenders. 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 Commitment Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a);
(b) the Commitment of and the Revolving Credit Total Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, the Majority Lenders or the Required Lenders or any other requisite Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 13.1); provided that (i) any waiver, amendment or modification requiring the consent of all Lenders pursuant to Section 13.1 (other than Section 13.1(ix)) or requiring the consent of each affected Lender which affects such Defaulting Lender differently than other affected Lenders pursuant to Section 13.1(i) or (viii), shall require the consent of such Defaulting Lender (which for the avoidance of doubt would include any change to the Maturity Date applicable to such Defaulting Lender, decreasing or forgiving any principal or interest due to such Defaulting Lender, any decrease of any interest rate applicable to Loans made by such Defaulting Lender (other than the waiving of post-default interest rates) and any increase in such Defaulting Lender’s Commitment) and (ii) any redetermination, whether an increase, decrease or affirmation, of the Borrowing Base shall occur without the participation of a Defaulting Lender, but the Commitment (i.e., the Commitment Percentage of any the Borrowing Base) of a Defaulting Lender may not be increased or extended without the consent of such Defaulting Lender;
(c) if any Swingline Exposure or Letter of Credit Exposure exists at the time a Lender becomes a Defaulting Lender, then (i) all or any part of such Letter of Credit Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the first proviso belowbelow and subject to the requirement that there is no Default or Event of Default then existing at such time, automatically be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Non-Defaulting Lenders pro rata in accordance with their respective Revolving Credit Commitment PercentagePercentages; provided that (A) each Non-Non- Defaulting Lender’s Revolving Letter of Credit Exposure may not in any event exceed the Revolving Credit Commitment Percentage of the Loan Limit of such Non-Defaulting Lender as in effect at the time of such reallocation and (B) subject to Section 13.21, neither such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Letter of Credit Issuer, the Swingline Lender Issuers or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, (ii) to the extent that all or any portion (the “unreallocated portion”) of the Defaulting Lender’s Letter of Credit Exposure and Swingline Exposure cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(c)(i2.1 5(c)(i) above or otherwise, the Borrower shall within two Business Days following notice by the Administrative Agent (x) first, prepay such Swingline Exposure (after giving pro forma 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 pro forma effect to any partial reallocation pursuant to clause (i) above), in accordance with the procedures set forth in Section 3.8 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 the requirements of this Section 2.16(c2.15(c), the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c4.1(b) with respect to such Defaulting Lender’s 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-non- Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(c2.15(c), then the fees Letter of Credit Fees payable to for the account of the Lenders pursuant to Section 4.1(c4.1(b) shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay any fees Letter of Credit Fees to the Defaulting Lender pursuant to Section 4.1(c4.1(b) with respect to such Defaulting Lender’s Letter of Credit Exposure during the period that such Defaulting Lender’s Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Letter of Credit Exposure is neither Cash Collateralized nor reallocated pursuant to the requirements of this Section 2.16(c2.15(c), then, without prejudice to any rights or remedies of the Letter of Credit Issuer or any Lender hereunder, all fees Letter of Credit Fees payable under Section 4.1(c4.1(b) with respect to 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) (i) the Letter of Credit Issuer will not be required to issue any new Letter of Credit or amend any outstanding Letter of Credit to increase the face amount Stated Amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the Letter of Credit Issuer is reasonably satisfied that any exposure that would result from the exposure to such Defaulting Lender is eliminated or fully covered by the Revolving Credit Commitments of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof in accordance with the requirements of Section 2.16(cclause (c) above or otherwise in a manner reasonably satisfactory to the Letter of Credit Issuer.
(e) If the Borrower, the Administrative Agent and the Letter of Credit Issuer agree in writing in their discretion that a Lender that is a Defaulting Lender should no longer be deemed to be a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon, as of the effective date specified in such notice and subject to any conditions set forth therein, such Lender will cease to be a Defaulting Lender and will be a Non-Defaulting Lender and any applicable Cash Collateral shall be promptly returned to the Borrower and any Letter of Credit Exposure of such Lender reallocated pursuant to Section 2.15(c) shall be reallocated back to such Lender; andprovided that, except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Non-Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from such Lender’s having been a Defaulting Lender.
Appears in 2 contracts
Sources: Credit Agreement (KKR Financial Holdings LLC), Credit Agreement (KKR Financial Holdings LLC)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting LenderLender hereunder, 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 Commitment of such Defaulting Lender pursuant to Section 4.1(a2.8(a);
(b) the Commitment of Commitments and the Total Revolving Extensions of Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders or any other requisite Lenders have taken or may take any action hereunder (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 13.111.1); provided that this clause (ib) any waivershall not apply to the vote of a Defaulting Lender in the case of an amendment, amendment waiver or other modification requiring the consent of all Lenders each Lender or each Lender affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lender and (ii) the Commitment of any Defaulting Lender may not be increased or extended without the consent of such Lenderthereby;
(c) if any Swingline Exposure Loan or Letter of Credit Exposure exists is outstanding at the time a such Lender becomes a Defaulting Lender, then Lender then:
(i) unless a Default shall have occurred and be continuing, all or any part of such Letter of Credit Exposure the Swingline Participation Amount and LC Obligations of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata in accordance with their respective Alternative Currency Revolving Percentages but only to the extent the sum of all non-Defaulting Lenders’ Alternative Currency Revolving Extensions of Credit Commitment Percentage; provided that (A) each Non-plus such Defaulting Lender’s Revolving Credit Exposure may Swingline Participation Amount and LC Obligations do not in any event exceed the Revolving Credit Commitment total of such Nonall non-Defaulting Lender as in effect at the time of such reallocation and (B) subject to Section 13.21, neither such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Letter of Credit Issuer, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, Lenders’ Alternative Currency Revolving Commitments;
(ii) to if the extent that all or any portion reallocation described in clause (the “unreallocated portion”i) of the Defaulting Lender’s Letter of Credit Exposure and Swingline Exposure above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(c)(i) above or otherwiseeffected, the Borrower shall within two one Business Days Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure Participation Amount and (y) second, cash collateralize for the benefit of the Issuing Lender only the Borrower’s obligations corresponding to such Defaulting Lender’s LC Obligations (after giving pro forma 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 pro forma effect to any partial reallocation pursuant to clause (i) above), in accordance with the procedures set forth in Section 3.8 3.10 for so long as such Letter of Credit Exposure is LC Obligations are outstanding, ;
(iii) if the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s Letter Alternative Currency Revolving Percentage of Credit Exposure the LC Obligations pursuant to the requirements of this Section 2.16(c)clause (ii) above, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c2.8(c) with respect to such Defaulting Lender’s Letter Alternative Currency Revolving Percentage of Credit Exposure the LC Obligations during the period such Defaulting Lender’s Letter of Credit Exposure is Cash Collateralized, LC Obligations are cash collateralized;
(iv) if the Letter of Credit Exposure LC Obligations of the Nonnon-Defaulting Lenders is are reallocated pursuant to the requirements of this Section 2.16(c)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(c2.8(a) and Section 2.8(c) shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Alternative Currency Revolving Credit Commitment Percentages and the Borrower shall not be required to pay Percentages; and
(v) if all or any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to portion of such Defaulting Lender’s Letter of Credit Exposure during the period that such Defaulting Lender’s Letter of Credit Exposure LC Obligations is reallocated, neither reallocated nor cash collateralized pursuant to clause (i) or (vii) if any Defaulting Lender’s Letter of Credit Exposure is neither Cash Collateralized nor reallocated pursuant to the requirements of this Section 2.16(c)above, then, without prejudice to any rights or remedies of the Letter of Credit Issuer Issuing Lender or any other Lender hereunder, all letter of credit fees payable under Section 4.1(c2.8(c) with respect to such Defaulting Lender’s Letter of Credit Exposure LC Obligations shall be payable to the Letter of Credit Issuer Issuing Lender until and to the extent that such Letter of Credit Exposure is Cash Collateralized LC Obligations are reallocated and/or reallocated;cash collateralized; and
(d) (i) so long as such Lender is a Defaulting Lender, the Letter of Credit Issuer will Swingline Lender shall not be required to issue fund any new 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 LC Obligations will be 100% covered by the Alternative Currency Revolving Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 2.26(c), and participating interests in any newly made Swingline Loan or any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Alternative Currency Revolving Lenders in a manner consistent with Section 2.26(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to a Parent of any Lender shall occur following the Closing Date and for so long as such event shall continue or (ii) the Swingline Lender or the Issuing Lender has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, 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 outstanding Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereofCredit, unless the Letter 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 Credit Issuer is reasonably satisfied such Lender hereunder. In the event that any exposure the Administrative Agent, the Borrower, the Swingline Lender and the Issuing Lender each agrees that would result from the exposure to such a Defaulting Lender is eliminated or fully covered by has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Participation Amount and LC Obligations of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Alternative Currency Revolving Commitment and on such date such Lender shall purchase at par such of the Revolving Credit Commitments Loans of the Non-Defaulting other Lenders or by Cash Collateralization or a combination thereof (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 the requirements of Section 2.16(c) above or otherwise in a manner reasonably satisfactory to the Letter of Credit Issuer; andits Revolving Percentage.
Appears in 2 contracts
Sources: Credit Agreement, Credit Agreement (Davita Healthcare Partners Inc.)
Defaulting Lenders. 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 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 Section 4.1(a2.13(a);
(b) the Revolving Total Commitment of and the Revolving Credit Total Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders or any other requisite Lenders have taken or may take any action hereunder (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 13.19.02); provided provided, that this clause (ib) any waivershall not apply to the vote of a Defaulting Lender in the case of an amendment, amendment waiver or other modification requiring the consent of all Lenders or each Lender affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lender and (ii) the Commitment of any Defaulting Lender may not be increased or extended without the consent of such Lenderthereby;
(c) if any Swingline Exposure or Letter of Credit LC Exposure exists at the time a such Lender becomes a Defaulting Lender, then Lender then:
(i) so long as no Event of Default shall have occurred and be continuing, all or any part of such Letter of Credit the LC Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata that are Revolving Lenders in accordance with their respective Applicable Revolving Credit Commitment Percentage; provided that Percentages but only to the extent (Ax) each Nonthe sum of all non-Defaulting Lenders’ Revolving Total Exposures plus such Defaulting Lender’s LC Exposure does not exceed the total of all non-Defaulting Lenders’ Revolving Total Commitments and (y) the sum of any non-Defaulting Lender’s Revolving Credit Total Exposure may not in any event exceed the plus its Applicable Revolving Credit Commitment Percentage of such Non-Defaulting Lender as in effect at the time of Lenders’ LC Exposure does not exceed such reallocation and (B) subject to Section 13.21, neither such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Letter of Credit Issuer, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Nonnon-Defaulting Lender, ’s Revolving Total Commitment;
(ii) to if the extent that all or any portion reallocation described in clause (the “unreallocated portion”i) of the Defaulting Lender’s Letter of Credit Exposure and Swingline Exposure above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(c)(i) above or otherwiseeffected, the Borrower shall within two one Business Days Day following notice by the Administrative Agent (x) first, prepay cash collateralize for the benefit of the Issuing Banks only the Borrower’s obligations corresponding to such Swingline Defaulting Lender’s LC Exposure (after giving pro forma 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 pro forma effect to any partial reallocation pursuant to clause (i) above), in accordance with the procedures set forth in Section 3.8 2.05(k) for so long as such Letter of Credit LC Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(c)clause (ii) above, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c2.13(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Letter of Credit LC Exposure is Cash Collateralized, cash collateralized;
(iv) if the Letter of Credit LC Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(c)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(c2.13(a) and (b) shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Applicable Revolving Credit Commitment Percentages and the Borrower shall not be required to pay Percentages; and
(v) if all or any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to portion of such Defaulting Lender’s Letter of Credit Exposure during the period that such Defaulting Lender’s Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Letter of Credit LC Exposure is neither Cash Collateralized reallocated nor reallocated cash collateralized pursuant to the requirements of this Section 2.16(c)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the Letter of Credit Issuer Issuing Banks or any other Revolving Lender hereunder, all fees payable under Section 4.1(c2.13(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure shall be payable to the Letter of Credit Issuer applicable Issuing Bank until and to the extent that such Letter of Credit LC Exposure is Cash Collateralized reallocated and/or reallocated;cash collateralized; and
(d) (i) the Letter of Credit Issuer will so long as such Lender is a Defaulting Lender, each Issuing Bank shall not be required to issue issue, amend or increase any new Letter of Credit or amend any outstanding Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereofCredit, unless the Letter of Credit Issuer it is reasonably satisfied that any the related exposure that would result from and the exposure to such Defaulting Lender is eliminated or fully Lender’s then outstanding LC Exposure will be 100% covered by the Revolving Credit Total Commitments of the Nonnon-Defaulting Lenders or and/or cash collateral will be provided by Cash Collateralization or a combination thereof the Borrower in accordance with the requirements Section 2.21(c), and participating interests in any newly issued or increased Letter of Section 2.16(c) above or otherwise Credit shall be allocated among non-Defaulting Lenders that are Revolving Lenders in a manner reasonably consistent with Section 2.21(c)(i) (and such Defaulting Lender shall not participate therein). If a Bankruptcy Event with respect to a Lender Parent of any Revolving Lender shall occur following the date hereof and for so long as such event shall continue or the applicable Issuing Bank has a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, such Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless such Issuing Bank shall have entered into arrangements with the Borrower or such Lender, satisfactory to such Issuing Bank, to defease any risk to it in respect of such Lender hereunder. In the Letter event that the Administrative Agent, the Borrower, and the Issuing Banks each agrees that a Defaulting Lender has adequately remedied all matters that caused such Revolving Lender to be a Defaulting Lender, then the LC Exposure of Credit Issuer; andthe Revolving Lenders shall be readjusted to reflect the inclusion of such Lender’s Revolving Total Commitment and on such date such Lender shall purchase at par such of the Revolving Total Loans of the other Revolving Lenders as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Revolving Total Loans in accordance with its Applicable Revolving Percentage.
Appears in 2 contracts
Sources: Credit Agreement (Huntington Ingalls Industries, Inc.), Credit Agreement (Huntington Ingalls Industries, Inc.)
Defaulting Lenders. 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 Commitment Commitments of such Defaulting Lender pursuant to Section 4.1(a2.12(a);
(b) the Commitment of Commitments and the Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders or a Majority in Interest of any other requisite Class of Lenders have taken or may take any action hereunder (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 13.19.02); provided, that, except as otherwise provided that in Section 9.02, this clause (ib) any waivershall not apply to the vote of a Defaulting Lender in the case of an amendment, amendment waiver or other modification requiring the consent of all Lenders such Lender or each Lender directly affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lender and (ii) the Commitment of any Defaulting Lender may not be increased or extended without the consent of such Lenderthereby;
(c) if any Swingline Exposure or Letter of Credit LC Exposure exists at the time a such Lender becomes a Defaulting Lender, then Lender then:
(i) so long as no Event of Default has occurred and is continuing, (x) all or any part of such Letter of Credit the Dollar Tranche LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders that are Dollar Tranche Lenders (the “Non-Defaulting Dollar Tranche Lenders”) in accordance with their respective Dollar Tranche Percentages but only to the extent (A) that the sum of all Non-Defaulting Dollar Tranche Lenders’ Dollar Tranche Revolving Credit Exposures plus such Defaulting Lender’s Dollar Tranche LC Exposure does not exceed the total of all Non-Defaulting Dollar Tranche Lenders’ Dollar Tranche Commitments and (B) each Non-Defaulting Dollar Tranche Lender’s Dollar Tranche Revolving Credit Exposure does not exceed such Non-Defaulting Dollar Tranche Lender’s Dollar Tranche Commitment and (y) all or any part of the Swingline Exposure and Multicurrency Tranche LC Exposure of such Defaulting Lender will, subject to the limitation in the proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the non-Defaulting Lenders that are Multicurrency Tranche Lenders (the “Non-Defaulting Lenders pro rata Multicurrency Tranche Lenders”) in accordance with their respective Multicurrency Tranche Percentages but only to the extent (A) that the sum of all Non-Defaulting Multicurrency Tranche Lenders’ Multicurrency Tranche Revolving Credit Commitment Percentage; provided that Exposures plus such Defaulting Lender’s Swingline Exposure and Multicurrency Tranche LC Exposure does not exceed the total of all Non-Defaulting Multicurrency Tranche Lenders’ Multicurrency Tranche Commitments and (AB) each Non-Defaulting Multicurrency Tranche Lender’s Multicurrency Tranche Revolving Credit Exposure may does not in any event exceed the Revolving Credit Commitment of such Non-Defaulting Lender as in effect at the time of such reallocation and (B) subject to Section 13.21, neither such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Letter of Credit Issuer, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Multicurrency Tranche Lender, ’s Multicurrency Tranche Commitment;
(ii) to if the extent that all or any portion reallocation described in clause (the “unreallocated portion”i) of the Defaulting Lender’s Letter of Credit Exposure and Swingline Exposure above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(c)(i) above or otherwiseeffected, the Borrower shall within two (2) Business Days following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of the Issuing Bank only the Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure (after giving pro forma 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 pro forma effect to any partial reallocation pursuant to clause (i) above), in accordance with the procedures set forth in Section 3.8 2.06(j) for so long as such Letter of Credit LC Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(c)clause (ii) above, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Letter of Credit LC Exposure is Cash Collateralized, cash collateralized;
(iv) if the Letter of Credit LC Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(c)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(c2.12(a) and Section 2.12(b) shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay Applicable Percentages; and
(v) if all or any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to portion of such Defaulting Lender’s Letter of Credit Exposure during the period that such Defaulting Lender’s Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Letter of Credit LC Exposure is neither Cash Collateralized reallocated nor reallocated cash collateralized pursuant to the requirements of this Section 2.16(c)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the Letter of Credit Issuer Issuing Bank or any other Lender hereunder, all letter of credit fees payable under Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure shall be payable to the Letter of Credit Issuer Issuing Bank until and to the extent that such Letter of Credit LC Exposure is Cash Collateralized reallocated and/or reallocated;cash collateralized; and
(d) (i) so long as such Lender is a Defaulting Lender, the Letter of Credit Issuer will Swingline Lender shall not be required to issue fund any new Swingline Loan and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC 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 Section 2.22(c), and participating interests in any such newly made Swingline Loan or any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.22(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to a Lender Parent shall occur following the date hereof and for so long as such event shall continue or (ii) the Swingline Lender or the Issuing Bank has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Bank shall not be required to issue, amend or increase any outstanding Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereofCredit, unless the Letter Swingline Lender or the Issuing Bank, as the case may be, shall have entered into arrangements with the Borrower or such Lender, satisfactory to the Swingline Lender or the Issuing Bank, as the case may be, to defease any risk to it in respect of Credit Issuer is reasonably satisfied such Lender hereunder. In the event that any exposure the Administrative Agent, the Borrower, the Swingline Lender and the Issuing Bank each agrees that would result from the exposure to such a Defaulting Lender is eliminated or fully covered by has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Revolving Credit Commitments Swingline Exposure and LC Exposure of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof shall be readjusted to reflect the inclusion of such Lender’s Commitments and on such date such Lender shall purchase at par such of the Dollar Tranche Revolving Loans of the other Lenders (other than Swingline Loans) and/or Multicurrency Tranche Revolving 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 Applicable Percentage, any cash collateral provided by the requirements of Borrower pursuant to Section 2.16(c2.22(c)(ii) above or otherwise in a manner reasonably satisfactory shall be immediately returned to the Letter of Credit Issuer; andBorrower and thereupon such Lender shall cease to be a Defaulting Lender.
Appears in 2 contracts
Sources: Credit Agreement (On Semiconductor Corp), Credit Agreement (On Semiconductor Corp)
Defaulting Lenders. 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 Commitment Fees shall cease to accrue from and after the time such Lender becomes a Defaulting Lender on the unfunded unused portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a2.11(a);
(b) if such Defaulting Lender is an Issuing Bank, fronting fees shall cease to accrue from and after the time such Lender becomes a Defaulting Lender on the LC Exposure attributable to Letters of Credit issued by such Issuing Bank pursuant to Section 2.11(b)(ii);
(c) the Commitment of and the Revolving Credit Exposure Exposure, if any, of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders or any other requisite Lenders have taken or may take any action hereunder under this Agreement (including any consent to any amendment amendment, waiver or waiver modification pursuant to Section 13.110.02); , provided that (i) any waiveramendment, amendment waiver or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected Lenders or that would (i) change the percentage of Commitments or of the aggregate unpaid principal amount of the Loans or LC Exposures, or the number of Lenders, that shall be required for the Lenders or any of them to take any action hereunder, (ii) amend this Section 2.21 or Section 10.02 in a manner which affects such Defaulting Lender differently than other Lenders and is adverse to such Defaulting Lender, (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 precedent, 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 Loans made by such Defaulting Lender or any LC Disbursements or (v) postpone the scheduled date for any payment of principal of, or interest on, the Loans made by such Defaulting Lender or any LC Disbursements, shall in each case require the consent of such Defaulting Lender and (ii) the Commitment of any which consent shall be deemed to have been given if such Defaulting Lender may not be increased or extended without the fails to respond to a written request for such consent within 30 days after receipt of such Lenderwritten request);
(cd) if any Swingline Exposure or Letter of Credit LC Exposure exists at the time a such Lender becomes a Defaulting Lender or at any time such Lender remains a Defaulting Lender, then then:
(i) (x) all or any part of such Letter of Credit LC Exposure of such Defaulting Lender and such Swingline comprising Global Tranche LC Exposure of such Defaulting Lender will, subject to the limitation in the proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Global Tranche Lenders that are Non-Defaulting Lenders pro rata in accordance with their respective Revolving Credit Commitment Percentage; provided that Adjusted Global Tranche Percentages but only to the extent (Aa) each the sum of any such Non-Defaulting Lender’s Revolving Global Tranche Credit Exposure may plus its Adjusted Global Tranche Percentage of such Defaulting Lender’s Global Tranche LC Exposure does not in any event exceed the Revolving Credit Commitment of such Non-Defaulting Lender as in effect at the time of such reallocation Lender’s Global Tranche Commitment and (Bb) subject to Section 13.21, neither the sum of all such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver Lenders’ Global Tranche Credit Exposures plus such Defaulting Lender’s Global Tranche LC Exposure does not exceed the total of all Non-Defaulting Lenders’ Global Tranche Credit Commitments (it being understood that such LC Exposure shall not be reallocated after the Revolving Credit Commitments are terminated on the Maturity Date) and (y) all or release any part of such LC Exposure comprising US/UK Tranche LC Exposure shall be reallocated among the US/UK Tranche Lenders that are Non-Defaulting Lenders in accordance with their respective Adjusted US/UK Tranche Percentages but only to the extent (a) the sum of any claim the Borrower, the Administrative Agent, the Letter of Credit Issuer, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, ’s US/UK Tranche Credit Exposure plus its Adjusted US/UK Tranche Percentage of such Defaulting Lender’s US/UK Tranche LC Exposure does not exceed such Non-Defaulting Lender’s US/UK Tranche Commitment and (b) the sum of all such Non-Defaulting Lenders’ US/UK Tranche Credit Exposures plus such Defaulting Lender’s US/UK Tranche LC Exposure does not exceed the total of all Non-Defaulting Lenders’ US/UK Tranche Credit Commitments (it being understood that such LC Exposure shall not be reallocated after the Revolving Credit Commitments are terminated on the Maturity Date);
(ii) to if the extent that all or any portion reallocation described in clause (the “unreallocated portion”i) of the Defaulting Lender’s Letter of Credit Exposure and Swingline Exposure above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(c)(i) above or otherwiseeffected, the Borrower Borrowers shall within two five Business Days following notice by the Administrative Agent (x) first, prepay cash collateralize such Swingline Defaulting Lender’s LC Exposure (after giving pro forma 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 pro forma effect to any partial reallocation pursuant to clause (i) above), in accordance with the procedures set forth in Section 3.8 2.04(k) for so long as such Letter of Credit LC Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes Borrowers cash collateralize any portion of such Defaulting Lender’s Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(c2.21(d), the Borrower Borrowers shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c2.11(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure (and such fees shall cease to accrue with respect to such Defaulting Lender’s LC Exposure) during the period such Defaulting Lender’s Letter of Credit LC Exposure is Cash Collateralized, cash collateralized;
(iv) if the Letter of Credit LC Exposure of the Non-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(c2.21(d), then the fees payable to the Lenders pursuant to Section 4.1(cSections 2.11(a) and 2.11(b) shall be adjusted in accordance with such Non-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to such Defaulting Lender’s Letter of Credit Exposure during the period that such Defaulting Lender’s Letter of Credit Exposure is reallocated, or Adjusted Tranche Percentages; and
(v) if any Defaulting Lender’s Letter of Credit LC Exposure is neither Cash Collateralized nor not reallocated pursuant to the requirements of this Section 2.16(c2.21(d), then, without prejudice to any rights or remedies of the Letter of Credit Issuer any Issuing Bank or any Lender hereunder, all letter of credit fees payable under Section 4.1(c2.11(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure shall be payable to the Letter of Credit Issuer applicable Issuing Bank(s) until such Letter of Credit LC Exposure is Cash Collateralized and/or reallocated;
(de) (i) the so long as any Lender is a Defaulting Lender, no Issuing Bank shall be required to issue, renew extend or increase any Letter of Credit Issuer will not be required to issue any new Letter of Credit or amend any outstanding Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the Letter of Credit Issuer is reasonably satisfied that any exposure such Defaulting Lender’s LC Exposure that would result from such newly issued, renewed, extended or increased Letter of Credit has been or would be, at the exposure to time of such Defaulting Lender is eliminated issuance, renewal, extension or increase, fully covered by the Revolving Credit Commitments of the allocated among Non-Defaulting Lenders pursuant to Section 2.21(d)(i) or fully cash collateralized by Cash Collateralization or the Borrowers pursuant to Section 2.21(d)(ii);
(f) in the event that the Administrative Agent, the Borrowers and the Issuing Banks each agree (acting reasonably) that a combination thereof Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the LC Exposure of the Lenders shall be readjusted to reflect the inclusion of the LC Exposure of such Lender as may be necessary in order for such Lender’s LC Exposure to be reallocated to such Lender in accordance with its applicable Tranche Percentage;
(g) the requirements of Section 2.16(creallocation pursuant to paragraph (d) above or the operation of any other provision of this Section 2.21, will not (i) subject to Section 10.17, constitute a waiver or release of any claim the Borrowers, the Administrative Agent, any Issuing Bank or any other Lender may have against such Defaulting Lender, including any claim of a Non-Defaulting Lender as a result of such Non-Defaulting Lender’s increased exposure following such reallocation, or (except with respect to clause (f) above) cause such Defaulting Lender to be a Non-Defaulting Lender, or (ii) except as expressly provided in this Section 2.21, excuse or otherwise in a manner reasonably satisfactory modify the performance by the Borrowers of their respective obligations under this Agreement and the other Loan Documents; and
(h) anything herein to the Letter contrary notwithstanding, the Borrowers may (i) require such Lender to assign and delegate all its interests, rights and obligations under the Loan Documents pursuant to Section 2.18(b) or (ii) terminate the unused amount of Credit Issuer; andthe Commitment of a Defaulting Lender on a non-pro rata basis upon notice to the Administrative Agent (which shall promptly notify the Lenders thereof), provided that such termination will not be deemed to be a waiver or release of any claim the Borrowers, the Administrative Agent, any Issuing Bank or any Lender may have against such Defaulting Lender.
Appears in 2 contracts
Sources: Credit Agreement (Molson Coors Beverage Co), Credit Agreement (Molson Coors Brewing Co)
Defaulting Lenders. 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 otherwise payable to such Defaulting Lender pursuant to Section 3.1(a) shall cease to accrue on the unfunded unused portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a)Lender;
(b) the Commitment of and the Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders (or each Lender) or the Required Lenders or any other requisite Lenders have taken or may take any action hereunder (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 13.110.11); provided provided, that this clause (ib) any waivershall not apply to the vote of a Defaulting Lender in the case of an amendment, amendment waiver or other modification providing for an increase in such Defaulting Lender’s Commitment, providing for an extension of such Defaulting Lender’s Commitment, or requiring the consent of all Lenders or each directly and adversely affected Lender which affects pursuant to Section 10.11(i)(B) if such Defaulting Lender differently than other is a directly and adversely affected Lenders shall require the consent of such Defaulting Lender and (ii) the Commitment of any Defaulting Lender may not be increased or extended without the consent of such Lender;
(c) if any Swingline Exposure or Letter of Credit L/C Exposure exists with respect to such Lender at the time a such Lender becomes a Defaulting Lender, then then:
(i) all or any part of such Letter of Credit the L/C Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the proviso below, automatically shall be reallocated (effective on as of the day date such Lender becomes a Defaulting Lender) among the Non-Defaulting Lenders pro rata in accordance with their respective Revolving Credit Applicable Percentages (for the purposes of such reallocation, such Defaulting Lender’s Commitment Percentage; provided shall be disregarded in determining the Non-Defaulting Lenders’ respective Applicable Percentages), but only to the extent that (A) each the sum of all Non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s L/C Exposure does not exceed the total of all Non-Defaulting Lenders’ Commitments, (B) after giving effect to any such reallocation, no Non-Defaulting Lender’s Revolving Credit Exposure may not in any event shall exceed the Revolving Credit Commitment of such Non-Defaulting Lender as in effect at the time of such reallocation Lender’s Commitment and (BC) subject to no Event of Default has occurred and is continuing at such time and the other conditions set forth in Section 13.21, neither 4.2(b) have been satisfied at such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Letter of Credit Issuer, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, time;
(ii) to if the extent that all or any portion reallocation described in clause (the “unreallocated portion”i) of the Defaulting Lender’s Letter of Credit Exposure and Swingline Exposure above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(c)(i) above or otherwiseeffected, the Borrower shall shall, within two one Business Days Day following the Borrower’s receipt of written notice by from the Administrative Agent (x) firstAgent, prepay Cash Collateralize for the benefit of the applicable Issuing Banks only the Borrower’s obligations corresponding to such Swingline Defaulting Lender’s L/C Exposure (after giving pro forma 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 pro forma effect to any partial reallocation pursuant to clause (i) above), in accordance with the procedures set forth in Section 3.8 7.4 for so long as such Letter of Credit L/C Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes any portion of such Defaulting Lender’s Letter of Credit L/C Exposure pursuant to the requirements of this Section 2.16(c)clause (ii) above, the Borrower shall not be required to pay any Letter of Credit participation fees to such Defaulting Lender pursuant to Section 4.1(c3.1(b) with respect to such Defaulting Lender’s Letter of Credit L/C Exposure during the period such Defaulting Lender’s Letter of Credit L/C Exposure is Cash Collateralized, Collateralized by the Borrower;
(iv) if the all or any portion of such Defaulting Lender’s L/C Exposure is reallocated pursuant to clause (i) above, then all Letter of Credit participation fees that otherwise would have been payable to such Defaulting Lender under Section 3.1(b) with respect to such Defaulting Lender’s reallocated L/C Exposure of shall be payable to the Non-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(c), then the fees payable to the Lenders pursuant to Section 4.1(c) shall be adjusted in accordance with such Non-Defaulting Lenders’ Revolving Credit Commitment Applicable Percentages and the Borrower shall not be required after giving effect to pay such reallocation; and
(v) if all or any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to portion of such Defaulting Lender’s Letter of Credit Exposure during the period that such Defaulting Lender’s Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Letter of Credit L/C Exposure is neither reallocated nor Cash Collateralized nor reallocated pursuant to the requirements of this Section 2.16(c)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the Letter of Credit Issuer any Issuing Bank or any other Lender hereunder, all Letter of Credit participation fees that otherwise would have been payable to such Defaulting Lender under Section 4.1(c3.1(b) with respect to such Defaulting Lender’s Letter of Credit unreallocated L/C Exposure shall be payable to the Letter Issuing Banks, ratably based on the portion of the Fronting Exposure attributable to the Letters of Credit Issuer issued by each Issuing Bank, until and to the extent that such Letter of Credit L/C Exposure is reallocated and/or Cash Collateralized and/or reallocatedpursuant to clause (i) or (ii) above;
(d) (i) so long as such Lender is determined by the Letter of Credit Issuer will Administrative Agent or any Issuing Bank to be a Defaulting Lender, such Issuing Bank shall not be required to issue issue, amend or increase any new Letter of Credit or amend any outstanding Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereofCredit, unless the Letter of Credit Issuer it is reasonably satisfied that any exposure that would result from the exposure to such related Fronting Exposure and the Defaulting Lender is eliminated or fully Lender’s then outstanding L/C Exposure will be 100% covered by the Revolving Credit Commitments of the Non-Defaulting Lenders and/or Cash Collateral will be provided by the Borrower in accordance with Section 2.14(c)(ii), 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 2.14(c)(i) (and such Defaulting Lender shall not participate therein);
(e) 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 Article 7 or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 10.6 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 hereunder; third, to Cash Collateralization or a combination thereof Collateralize in accordance with the requirements procedures set forth in Section 7.4 the Issuing Banks’ Fronting Exposure with respect to such Defaulting Lender; fourth, as the Borrower may request (so long as no Default or Event of Section 2.16(c) above or otherwise 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; fifth, if so determined by the Administrative Agent and the Borrower, to be held in a manner reasonably satisfactory 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 in accordance with the procedures set forth in Section 7.4 the Issuing Banks’ future Fronting Exposure with respect to such Defaulting Lender with respect to future Letters of Credit issued under this Agreement,; sixth, to the Letter payment of any amounts owing to the Lenders or the Issuing Banks or as a result of any judgment of a court of competent jurisdiction obtained by any Lender or the Issuing Banks 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 L/C Disbursements 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 Issuerwere 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 L/C Disbursements owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or L/C Disbursements owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in L/C Obligations are held by the Lenders pro rata in accordance with the Commitments without giving effect to Section 2.14(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 Cash Collateral 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 Borrower, and each Issuing Bank agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the L/C Exposures of the Lenders shall be readjusted to reflect the inclusion of such previous Defaulting Lender’s Commitment, and on such date such previous Defaulting Lender shall purchase at par such of the Loans of the other Lenders as the Administrative Agent shall determine may be necessary in order for such previous Defaulting Lender to hold such Loans and L/C Exposure in accordance with its Applicable Percentage; provided, however, that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower or any other Loan Party while such previous Defaulting Lender was a Defaulting Lender; and
(g) the rights and remedies against, and with respect to, a Defaulting Lender under this Section 2.14 are in addition to, and cumulative and not in limitation of, all other rights and remedies that the Administrative Agent and each Lender, Issuing Bank, Borrower or any other Loan Party may at any time have against, or with respect to, such Defaulting Lender (whether or not such Defaulting Lender has subsequently ceased to be a Defaulting Lender pursuant to Section 2.14(f)).
Appears in 2 contracts
Sources: Credit Agreement (Transocean Ltd.), Credit Agreement (Transocean Ltd.)
Defaulting Lenders. 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 Fees set forth in Section 2.16 shall cease to accrue on the unfunded portion of the Commitment Commitments of such Defaulting Lender pursuant to Section 4.1(a)Lender;
(b) To the Commitment extent permitted by applicable Law, any voluntary prepayment of Revolving Loans shall, if the Borrower so directs at the time of making such voluntary prepayment, be applied to the Revolving Loans of other Lenders as if such Defaulting Lender had no Revolving Loans outstanding and the Aggregate Exposure of such Defaulting Lender in respect of its Revolving Credit Commitment were zero;
(c) The Aggregate Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders or any other requisite Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 13.110.01); , provided that (i) 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 (ii) in any event, no such amendment, modification, or waiver shall increase the Commitment Commitments or the principal amount of any Loans of such Defaulting Lender may not be increased Lender, extend the maturity date applicable thereto or extended decrease the rate of interest (including any commitment fees) payable in respect thereof without the consent of such Defaulting Lender;
(cd) if If any Swingline Exposure or Letter of Credit Exposure Usage exists at the time a Revolving Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Letter of Credit Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the proviso below, automatically Usage shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Non-Revolving Lenders that are not Defaulting Lenders pro rata in accordance with their respective Revolving Credit Commitment Percentage; provided Percentages but, in any case, only to the extent (x) the sum of the Outstanding Revolving Obligations of all Revolving Lenders that (A) each Non-are not Defaulting Lenders plus such Defaulting Lender’s Revolving Credit Exposure may not ratable participation in any event exceed the Revolving Credit Commitment of such Non-Defaulting Lender as in effect at the time of such reallocation and (B) subject to Section 13.21, neither such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the all Letter of Credit Issuer, Usage does not exceed the Swingline Lender or any other Lender may have against total of the Revolving Commitments of all Revolving Lenders that are not Defaulting Lenders and (y) the conditions set forth in Section 4.03 are satisfied at such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, time;
(ii) to if the extent that all or any portion reallocation described in clause (the “unreallocated portion”i) of the Defaulting Lender’s Letter of Credit Exposure and Swingline Exposure above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(c)(i) above or otherwiseeffected, the Borrower shall within two one Business Days Day following notice by the Administrative Agent Agent, either (x) first, prepay cash collateralize such Swingline Exposure Defaulting Lender’s participation in all Letter of Credit Usage (after giving pro forma effect to any partial reallocation pursuant to clause (i) above) and (y) second, Cash Collateralize such Defaulting Lender’s in a Letter of Credit Exposure (after giving pro forma effect to any partial reallocation pursuant to clause (i) above), in accordance with the procedures set forth in Section 3.8 Cash Collateral Account for so long as such Letter of Credit Exposure is outstanding, outstanding or (y) backstop such Letter of Credit Usage with a letter of credit reasonably satisfactory to the Issuing Lender;
(iii) if the Borrower Cash Collateralizes cash collateralizes or backstops any portion of such Defaulting Lender’s Letter of Credit Exposure Usage pursuant to the requirements of this Section 2.16(csubsection (d), the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c2.06(j) with respect to such Defaulting Lender’s Letter of Credit Exposure Usage during the period such Defaulting Lender’s Letter of Credit Exposure Usage is Cash Collateralized, cash collateralized or backstopped;
(iv) if the Letter of Credit Exposure of Usage attributable to the Non-Defaulting Lenders that are Revolving Lenders is reallocated pursuant to the requirements of this Section 2.16(csubsection (d), then the fees payable to the non-Defaulting Lenders pursuant to Section 4.1(c2.16(b) and Section 2.06(j) shall be adjusted in accordance with such Nonthe non-Defaulting Lenders’ respective Revolving Credit Commitment Percentages and the Borrower shall not be required to pay any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to account for such Defaulting Lender’s Letter of Credit Exposure during the period that such Defaulting Lender’s Letter of Credit Exposure is reallocated, or reallocation; and
(v) if any Defaulting Lender’s participation in all Letter of Credit Exposure Usage is neither Cash Collateralized cash collateralized, backstopped nor reallocated pursuant to the requirements of this Section 2.16(csubsection (d), then, without prejudice to any rights or remedies of the Letter of Credit Issuer Issuing Lenders or any Lender hereunder, all Letter of Credit fees payable under Section 4.1(c2.06(j) with respect to such Defaulting Lender’s remaining participation in all Letter of Credit Exposure Usage shall be payable to the applicable Issuing Lenders until such participation in all Letter of Credit Issuer until Usage is backstopped, cash collateralized and/or reallocated.
(e) So long as any Revolving 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 Commitments of the non-Defaulting Lenders and/or cash collateral or backstop letters of credit will be provided by the Borrower in accordance with subsection (d) of this Section, and participating interests in any such newly issued or increased Letter of Credit Exposure is Cash Collateralized and/or reallocated;shall be allocated among non-Defaulting Lenders that are Revolving Lenders in a manner consistent with subsection (d)(i) of this Section (and Defaulting Lenders shall not participate therein).
(df) (i) In the event that each of the Administrative Agent, the Borrower and the Issuing Lenders agree that a Defaulting Lender that is a Revolving Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Letter of Credit Issuer will not Usage of the Revolving Lenders shall be required readjusted to issue any new Letter reflect the inclusion of Credit or amend any outstanding Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry such formerly Defaulting Lender’s Revolving Commitment and on such date thereof, unless the Letter of Credit Issuer is reasonably satisfied that any exposure that would result from the exposure to such formerly Defaulting Lender is eliminated or fully covered by shall purchase at par such of the Revolving Credit Commitments Loans of the Non-other Revolving Lenders as the Administrative Agent shall determine may be necessary in order for such formerly Defaulting Lenders or by Cash Collateralization or a combination thereof Lender to hold such Revolving Loans in accordance with the requirements of Section 2.16(c) above or otherwise in a manner reasonably satisfactory to the Letter of Credit Issuer; andits Revolving Percentage.
Appears in 2 contracts
Sources: Credit Agreement (NBCUniversal Media, LLC), Credit Agreement (General Electric Co)
Defaulting Lenders. 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 Unused Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a2.05(b). Any amount paid by the Borrowers 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 retained by the Administrative Agent in a segregated, non-interest bearing account until the occurrence of the Final Collection Date, after which such amount shall be used to pay amounts owing under this Agreement to such Defaulting Lender or as a court of competent jurisdiction may otherwise direct;
(b) upon the election of the Borrowers and written notice to the Administrative Agent, the unused portion of the Commitment of such Defaulting Lender may be reduced to zero without any contemporaneous ratable reduction of the Commitments of the other Lenders;
(c) neither the Commitment nor the Loans of such Defaulting Lender shall be included in determining whether all Lenders or the Majority Lenders have taken or may take any action hereunder and the Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders or any other requisite Lenders have taken or may take have taken any action hereunder (including including, in each case, any consent to any amendment or waiver pursuant to Section 13.110.01); provided provided, that (i) 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 or Lenders shall require the consent of such Defaulting Lender and Lender, as applicable; and
(iid) the Commitment of any Borrowers may replace such Defaulting Lender may not in accordance with Section 2.22. In the event that the Administrative Agent, and, so long as no Event of Default has occurred and is continuing, the Borrower Representative, determines that a Defaulting Lender has adequately remedied all matters that caused such Lender to be increased or extended without the consent of such Lender;
(c) if any Swingline Exposure or Letter of Credit Exposure exists at the time a Lender becomes a Defaulting Lender, then (ix) all or any part the Lender Percentages shall be readjusted to reflect the inclusion of such Letter Lender’s Commitment and on such date such Lender shall purchase at par such of Credit Exposure the Loans of the other Lenders as the Administrative Agent and the Lenders shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Lender Percentage whereupon such Lender will cease to be a Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the proviso below, automatically will be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Non-Defaulting Lenders pro rata in accordance with their respective Revolving Credit Commitment Percentage; provided that (A) each Non-Defaulting Lender’s Revolving Credit Exposure may not in any event exceed the Revolving Credit Commitment of such Non-Defaulting Lender as in effect at the time of such reallocation and (B) subject to Section 13.21, neither such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto and (y) the provisions of clauses (a) through (d) above shall, from and after such determination, cease to be of further force or effect with respect to such Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers while such 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 Non-Defaulting Lender will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Letter of Credit Issuer, the Swingline any party hereunder arising from such Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be having been a Non-Defaulting Lender, (ii) to the extent that all or any portion (the “unreallocated portion”) of the Defaulting Lender’s Letter of Credit Exposure and Swingline Exposure cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(c)(i) above or otherwise, the Borrower shall within two Business Days following notice by the Administrative Agent (x) first, prepay such Swingline Exposure (after giving pro forma 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 pro forma effect to any partial reallocation pursuant to clause (i) above), in accordance with the procedures set forth in Section 3.8 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 the requirements of this Section 2.16(c), the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c) with respect to such Defaulting Lender’s 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 the requirements of this Section 2.16(c), then the fees payable to the Lenders pursuant to Section 4.1(c) shall be adjusted in accordance with such Non-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to such Defaulting Lender’s Letter of Credit Exposure during the period that such Defaulting Lender’s Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Letter of Credit Exposure is neither Cash Collateralized nor reallocated pursuant to the requirements of this Section 2.16(c), then, without prejudice to any rights or remedies of the Letter of Credit Issuer or any Lender hereunder, all fees payable under Section 4.1(c) with respect to 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;
(d) (i) the Letter of Credit Issuer will not be required to issue any new Letter of Credit or amend any outstanding Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the Letter of Credit Issuer is reasonably satisfied that any exposure that would result from the exposure to such Defaulting Lender is eliminated or fully covered by the Revolving Credit Commitments of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof in accordance with the requirements of Section 2.16(c) above or otherwise in a manner reasonably satisfactory to the Letter of Credit Issuer; and.
Appears in 2 contracts
Sources: Loan Agreement (Bluerock Homes Trust, Inc.), Loan Agreement (Bluerock Residential Growth REIT, Inc.)
Defaulting Lenders. 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 Commitment of such Defaulting Lender shall not be entitled to receive any commitment fee pursuant to Section 4.1(a2.09(a) for any period during which it is a Defaulting Lender (and the Company shall not be required to pay any such fee that would otherwise have been required to have been paid to such Defaulting Lender);
(b) the Commitment of Commitments and the Revolving Credit Exposure Exposures of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders or any other requisite Lenders have taken or may take any action hereunder (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 13.19.02); provided except that (i) 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 (ii) the Commitment Commitments of any Defaulting Lender may not be increased or extended without the consent of such Lender and (ii) any waiver, amendment or other modification requiring the consent of all Lenders or each affected Lender that by its terms affects any Defaulting Lender more adversely than other affected Lenders shall require the consent of such Defaulting Lender;; and
(c) if with respect to any Swingline Exposure or Several Letter of Credit Exposure exists and/or the L/C Obligations of such Defaulting Lender with respect thereto,
(i) such Defaulting Lender shall not be entitled to receive any Letter of Credit fee pursuant to Section 2.09(b) for any period during which it is a Defaulting Lender (and (except as provided in clause (c)(iii) below) the Company shall not be required to pay any such fee that would otherwise have been required to have been paid to such Defaulting Lender);
(ii) subject to the condition that no Default has occurred and is continuing, with respect to any Several Letter of Credit outstanding at the time a such Lender becomes a Defaulting Lender (other than any Several Letter of Credit with respect to which another Lender has agreed to act as the Limited Fronting Lender for such Defaulting Lender), then with the consent of the beneficiary thereunder to the extent required by the terms thereof or under applicable Law, (i) all or any part portion of such Letter of Credit Exposure of the L/C Obligations held by such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Non-Defaulting Lenders pro rata in accordance with their respective Revolving Credit Commitment Percentage; provided L/C Tranche Applicable Percentages but only to the extent that (A) the sum of the aggregate L/C Tranche Credit Exposure of Non-Defaulting Lenders plus the Outstanding Amount of the L/C Obligations held by such Defaulting Lender shall not exceed the total L/C Tranche Commitments of the Non-Defaulting Lenders (except as provided in Section 2.20(k) for Limited Fronting Lenders) and (B) the aggregate Outstanding Amount of the L/C Obligations held by each Non-Defaulting Lender’s Revolving Credit Exposure may Lender shall not in any event exceed the Revolving Credit L/C Tranche Commitment of such Non-Defaulting Lender (except as provided in effect at the time of Section 2.20(k) if such reallocation and (B) subject to Section 13.21, neither such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute is a waiver or release of any claim the Borrower, the Administrative Agent, the Limited Fronting Lender) and (ii) each such Several Letter of Credit Issuer, shall be amended to specify the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, (ii) Lenders that are parties to the extent that all or any portion (the “unreallocated portion”) of the Defaulting Lender’s such Several Letter of Credit Exposure Credit, after giving effect to such event, and Swingline Exposure cannot, or can only partially, be so reallocated to such Non-Defaulting Lenders, whether by reason ’ respective L/C Tranche Applicable Percentages with respect thereto as of the first proviso in Section 2.16(c)(i) above or otherwiseeffective date of such amendment (and, notwithstanding anything herein to the Borrower shall within two Business Days following notice by the Administrative Agent (x) firstcontrary, prepay such Swingline Exposure (after giving pro forma effect to any partial reallocation pursuant to clause (i) above) and (y) second, Cash Collateralize such Defaulting Lender’s Lender shall have no obligation under each such Several Letter of Credit Exposure (after giving pro forma effect to any partial reallocation pursuant to clause (i) abovethe extent such L/C Obligations in respect thereof are so allocated), in accordance with the procedures set forth in Section 3.8 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 the requirements of this Section 2.16(c), the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c) with respect to such Defaulting Lender’s 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 L/C Obligations held by the Non-Defaulting Lenders is are reallocated with respect to any Several Letter of Credit pursuant to the requirements of this Section 2.16(c)clause (c)(ii) above, then the Letter of Credit fees payable to the Lenders with respect to such Several Letter of Credit pursuant to Section 4.1(c2.09(b) shall be adjusted in accordance with such Non-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay any fees to the Defaulting L/C Tranche Applicable Percentages; and
(iv) so long as such Lender pursuant to Section 4.1(c) with respect to such remains a Defaulting Lender’s , the L/C Obligations of the Lenders in respect of any Several Letter of Credit Exposure during requested to be issued hereunder shall be allocated among Non-Defaulting Lenders in a manner consistent with clause (c)(ii) above (and, notwithstanding anything herein to the period that contrary, such Defaulting Lender’s Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Letter of Credit Exposure is neither Cash Collateralized nor reallocated pursuant to the requirements of this Section 2.16(c), then, without prejudice to any rights or remedies of the Letter of Credit Issuer or any Lender hereunder, all fees payable shall have no obligation under Section 4.1(c) with respect to each 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;
(d) (i) the Letter of Credit Issuer will not be required to issue any new Letter of Credit or amend any outstanding Several Letter of Credit to increase the face amount thereofextent such L/C Obligations in respect thereof are so allocated). In the event that the Administrative Agent, alter the drawing terms thereunder or extend applicable Several L/C Agent and the expiry date thereof, unless the Letter of Credit Issuer is reasonably satisfied Company each agrees that any exposure that would result from the exposure to such a Defaulting Lender is eliminated or fully covered has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then on such date, (A) to the extent the L/C Obligations held by the Revolving Credit Commitments of the Non-Defaulting Lenders were theretofore reallocated with respect to any Several Letter of Credit pursuant to clause (c)(ii) or (iv) above, all adjustments shall be made to such Several Letters of Credit consistent with Section 2.20(b)(iv) (including amendments to each such Several Letter of Credit and/or, if applicable, purchases at par by Cash Collateralization or a combination thereof such Lender of the Unreimbursed Amounts then outstanding (if any) of the other Lenders thereunder) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such L/C Obligations in accordance with its L/C Tranche Applicable Percentage; (B) if the requirements of Section 2.16(c) above or otherwise in a manner reasonably satisfactory L/C Obligations held by the Non-Defaulting Lenders were not theretofore reallocated with respect to the such Several Letter of Credit Issuerpursuant to clause (c)(ii) above, but instead the face amount of any such Several Letter of Credit was increased or a new Several Letter of Credit was issued hereunder in favor of the beneficiary of such Several Letter of Credit in order to provide such beneficiary with an aggregate undrawn face amount of Letters of Credit from the Non-Defaulting Lenders in the amount required by such beneficiary, the amount of such Several Letter of Credit or new Several Letter of Credit shall be amended to decrease the amount thereof, or the Company shall arrange for such new Letter of Credit to be surrendered by such beneficiary to such Several L/C Agent, in order to reflect the inclusion of such Lender’s L/C Tranche Commitment; andand (C) 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 Applicable Percentage with respect to each applicable Tranche, whereupon such Lender shall no longer be a Defaulting Lender.
Appears in 2 contracts
Sources: Credit Agreement (American International Group Inc), Credit Agreement (American International Group Inc)
Defaulting Lenders. Notwithstanding any provision of this Agreement anything to the contrarycontrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long then, until such time as such Lender is no longer a Defaulting Lender, to the extent permitted by applicable law:
(a) fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a2.11(a);
(b) the Commitment of and the Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 13.19.2); provided provided, that (i) any waiveramendment, amendment waiver or other modification requiring the consent of all Lenders or each all Lenders affected Lender which affects thereby shall, if such Defaulting Lender differently than other is an affected Lenders shall Lender, except as otherwise provided in Section 9.2, require the consent of such Defaulting Lender and (ii) in accordance with the Commitment of any Defaulting Lender may not be increased or extended without the consent of such Lenderterms hereof;
(c) if any Swingline Exposure or Letter of Credit LC Exposure exists at the time a such Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Letter of Credit the Swingline Exposure and LC Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the proviso below, automatically shall be reallocated (effective on as of the day date such Lender becomes a Defaulting Lender) among the Non-Defaulting Lenders pro rata in accordance with their respective Applicable Percentages (for the purposes of such reallocation, such Defaulting Lender’s Commitment shall be disregarded in determining the Non-Defaulting Lenders’ respective Applicable Percentages) but only to the extent (x) the sum of all Non-Defaulting Lenders’ Revolving Credit Commitment Percentage; provided that Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the total of all Non-Defaulting Lenders’ Commitments and (Ay) after giving effect to any such reallocation, each Non-Defaulting Lender’s Revolving Credit Exposure may does not in any event exceed the Revolving Credit Commitment of such Non-Defaulting Lender as in effect at the time of such reallocation and (B) subject Lender’s Commitment. Subject to Section 13.219.22, neither such no reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will hereunder shall constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Letter of Credit Issuer, the Swingline Lender or any other Lender may have party hereunder against such a Defaulting Lender or cause such arising from that Lender having become a Defaulting Lender to be Lender, including any claim of a Non-Defaulting Lender as a result of such Non-Defaulting Lender, ’s increased exposure following such reallocation.
(ii) to if the extent that all or any portion reallocation described in clause (the “unreallocated portion”i) of the Defaulting Lender’s Letter of Credit Exposure and Swingline Exposure above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(c)(i) above or otherwiseeffected, the Borrower Borrowers shall within two three (3) Business Days following written notice to the Lead Borrower by the Administrative Agent (x) first, prepay such Swingline Exposure that has not been reallocated and (y) second, cash collateralize for the benefit of the applicable Issuing Banks only the Borrowers’ Obligations corresponding to such Defaulting Lender’s LC Exposure that has not been reallocated (after giving pro forma 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 pro forma effect to any partial reallocation pursuant to clause (i) above), in accordance with the procedures set forth in Section 3.8 2.5(i) for so long as such Letter of Credit LC Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes Borrowers cash collateralize any portion of such Defaulting Lender’s Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(c)clause (ii) above, the Borrower Borrowers shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c2.11(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Letter of Credit LC Exposure is Cash Collateralized, cash collateralized;
(iv) if the Letter of Credit LC Exposure of the Non-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(c)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(c2.11(a) and Section 2.11(b) shall be adjusted in accordance with to give effect to such Non-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay reallocation; and
(v) if all or any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to portion of such Defaulting Lender’s Letter of Credit Exposure during the period that such Defaulting Lender’s Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Letter of Credit LC Exposure is neither Cash Collateralized reallocated nor reallocated cash collateralized pursuant to the requirements of this Section 2.16(c)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the Letter of Credit Issuer any Issuing Bank or any other Lender hereunder, all Letter of Credit fees that otherwise would have been payable to such Defaulting Lender under Section 4.1(c2.11(b) with respect to such Defaulting Lender’s Letter of Credit unreallocated LC Exposure shall be payable to the Letter applicable Issuing Banks ratably based on the portion of such LC Exposure attributable to Letters of Credit Issuer issued by such Issuing Bank, until and to the extent that such Letter of Credit LC Exposure is Cash Collateralized reallocated and/or reallocated;cash collateralized pursuant to clause (i) or (ii) above; and
(d) (i) so long as such Lender is a Defaulting Lender, the Letter of Credit Issuer will Swingline Lender shall not be required to issue fund any new Swingline Loan and no Issuing Bank shall be required to issue, amend or increase any Letter of Credit or amend any outstanding Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereofCredit, unless the Letter of Credit Issuer it is reasonably satisfied that any the related exposure that would result from and the exposure to such Defaulting Lender is eliminated or fully Lender’s then outstanding LC Exposure will be 100% covered by the Revolving Credit Commitments of the Non-Defaulting Lenders or and/or cash collateral will be provided by Cash Collateralization or a combination thereof the Lead Borrower in accordance with the requirements this Section 2.22, and participating interests in any such newly made Swingline Loan or any newly issued or increased Letter of Section 2.16(c) above or otherwise Credit shall be allocated among Non-Defaulting Lenders in a manner reasonably consistent with this Section 2.22 (and such Defaulting Lender shall not participate therein). In the event that (x) a direct or indirect parent company of a Lender becomes the subject of a proceeding under any Debtor Relief Law following the Fourth Restatement Effective Date and for so long as such proceeding under any Debtor Relief Law shall continue or (y) the Swingline Lender or any 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, the Swingline Lender shall not be required to fund any Swingline Loan, and such Issuing Bank shall not be required to issue, amend, renew or extend any Letter of Credit, unless the Swingline Lender or such Issuing Bank, as the case may be, shall have entered into arrangements with the Borrowers or such Lender satisfactory to the Letter Swingline Lender or such Issuing Bank, as the case may be, to defease any risk to it in respect of Credit Issuersuch Lender hereunder. In the event that each of the Administrative Agent, the Lead Borrower, the Swingline Lender and each Issuing Bank agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such 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 the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage; andprovided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of any Borrower 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.
Appears in 2 contracts
Sources: Revolving Credit Agreement (CF Industries Holdings, Inc.), Revolving Credit Agreement (CF Industries Holdings, Inc.)
Defaulting Lenders. 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 Commitment of such Defaulting Lender pursuant to Section 4.1(a);
(b) the Commitment of and the Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders or any other requisite Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 13.1); provided that (i) 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 (ii) the Commitment of any Defaulting Lender may not be increased or extended without the consent of such Lender;
(c) if any Swingline Exposure or Letter of Credit Exposure exists at the time a Lender becomes a Defaulting Lender, then (i) all or any part of such Letter of Credit Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the proviso below, automatically be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Non-Defaulting Lenders pro rata in accordance with their respective Revolving Credit Commitment Percentage; provided that (A) each Non-Defaulting Lender’s Revolving Credit Exposure may not in any event exceed the Revolving Credit Commitment of such Non-Defaulting Lender as in effect at the time of such reallocation and (B) subject to Section 13.21, neither such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Letter of Credit Issuer, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, (ii) to the extent that all or any portion (the “unreallocated portion”) of the Defaulting Lender’s Letter of Credit Exposure and Swingline Exposure cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(c)(i) above or otherwise, the Borrower shall within two Business Days following notice by the Administrative Agent (x) first, prepay such Swingline Exposure (after giving pro forma 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 pro forma effect to any partial reallocation pursuant to clause (i) above), in accordance with the procedures set forth in Section 3.8 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 the requirements of this Section 2.16(c), the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c) with respect to such Defaulting Lender’s 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 the requirements of this Section 2.16(c), then the fees payable to the Lenders pursuant to Section 4.1(c) shall be adjusted in accordance with such Non-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to such Defaulting Lender’s Letter of Credit Exposure during the period that such Defaulting Lender’s Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Letter of Credit Exposure is neither Cash Collateralized nor reallocated pursuant to the requirements of this Section 2.16(c), then, without prejudice to any rights or remedies of the Letter of Credit Issuer or any Lender hereunder, all fees payable under Section 4.1(c) with respect to 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;
(d) (i) the Letter of Credit Issuer will not be required to issue any new Letter of Credit or amend any outstanding Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the Letter of Credit Issuer is reasonably satisfied that any exposure that would result from the exposure to such Defaulting Lender is eliminated or fully covered by the Revolving Credit Commitments of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof in accordance with the requirements of Section 2.16(c) above or otherwise in a manner reasonably satisfactory to the Letter of Credit Issuer; and
Appears in 2 contracts
Sources: Incremental Agreement to Credit Agreement (Snap One Holdings Corp.), Incremental Agreement to Credit Agreement (Snap One Holdings Corp.)
Defaulting Lenders. (a) Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(ai) fees Unused Commitment Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a2.10(a);
(bii) notwithstanding anything to the contrary contained in Section 2.03 hereof, the unused portion of the Commitment of such Defaulting Lender may be reduced to zero without any contemporaneous ratable reduction of the Commitments of the other Lenders;
(iii) neither the Commitment nor the portion of the Loans Outstanding (if any) funded by such Defaulting Lender shall be included in determining whether all Lenders, a majority of the Lenders or the Required Lenders have taken or may take any action hereunder and the Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders or any other requisite Lenders have taken or may take any action hereunder (including including, in each case, any consent to any amendment or waiver pursuant to Section 13.113.01); provided provided, that (i) any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender Lender, as applicable, which affects such Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lender and Lender; and
(iiiv) the Commitment of any Borrower may replace such Defaulting Lender may not be increased or extended without the consent in accordance with Section 2.17 of such Lender;this Agreement.
(cb) if any Swingline Exposure or Letter of Credit Exposure exists at In the time event that the Administrative Agent determines that a Defaulting Lender becomes has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then (i) all or any part the Lender Percentages shall be readjusted to reflect the inclusion of such Letter of Credit Exposure of ▇▇▇▇▇▇’s Commitment and on such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the proviso below, automatically be reallocated (effective on the day date such Lender becomes a Defaulting Lender) among shall purchase at par such of the Non-Defaulting Loans of the other Lenders pro rata as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with their respective Revolving Credit Commitment Percentage; provided that (A) each Non-Defaulting Lender’s Revolving Credit Exposure may not in any event exceed the Revolving Credit Commitment of such Non-Defaulting its Lender as in effect at the time of such reallocation Percentage and (B) subject to Section 13.21, neither such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Letter of Credit Issuer, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, (ii) to the extent that all or any portion (the “unreallocated portion”) provisions of the Defaulting Lender’s Letter of Credit Exposure and Swingline Exposure cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(c)(i) above or otherwise, the Borrower shall within two Business Days following notice by the Administrative Agent (x) first, prepay such Swingline Exposure (after giving pro forma 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 pro forma effect to any partial reallocation pursuant to clause (i) abovea), in accordance with the procedures set forth in Section 3.8 for so long as above, shall, from and after such Letter determination, cease to be of Credit Exposure is outstanding, (iii) if the Borrower Cash Collateralizes any portion of such Defaulting Lender’s Letter of Credit Exposure pursuant to the requirements of this Section 2.16(c), the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c) further force or effect with respect to such Defaulting Lender’s 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 the requirements of this Section 2.16(c), then the fees payable to the Lenders pursuant to Section 4.1(c) shall be adjusted in accordance with such Non-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to such Defaulting Lender’s Letter of Credit Exposure during the period that such Defaulting Lender’s Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Letter of Credit Exposure is neither Cash Collateralized nor reallocated pursuant to the requirements of this Section 2.16(c), then, without prejudice to any rights or remedies of the Letter of Credit Issuer or any Lender hereunder, all fees payable under Section 4.1(c) with respect to 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;
(d) (i) the Letter of Credit Issuer will not be required to issue any new Letter of Credit or amend any outstanding Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the Letter of Credit Issuer is reasonably satisfied that any exposure that would result from the exposure to such Defaulting Lender is eliminated or fully covered by the Revolving Credit Commitments of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof in accordance with the requirements of Section 2.16(c) above or otherwise in a manner reasonably satisfactory to the Letter of Credit Issuer; and.
Appears in 2 contracts
Sources: Loan Agreement (Lendbuzz Inc.), Loan Agreement (Lendbuzz Inc.)
Defaulting Lenders. 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) fees shall cease to accrue on the unfunded portion of the Revolving Commitment of such Defaulting Lender pursuant to Section 4.1(a2.12(a);
(b) the unused Commitment of and the Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders or any other requisite Lenders have taken or may take any action hereunder (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 13.19.02); provided that this clause (ib) any waivershall not apply to the vote of a Defaulting Lender in the case of an amendment, amendment waiver or other modification requiring the consent of all Lenders such Lender or each Lender affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lender and (ii) the Commitment of any Defaulting Lender may not be increased or extended without the consent of such Lenderthereby under Section 9.02;
(c) if any Swingline Exposure or Letter of Credit LC Exposure exists at the time a such Revolving Lender becomes a Defaulting Lender, then Lender then:
(i) so long as no Default has occurred and is continuing: all or any part of such Letter of Credit Exposure of such Defaulting Lender and such the Swingline Exposure of such Defaulting Lender will, subject to the limitation in the proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Dollar Tranche Lenders pro rata in accordance with their respective Revolving Credit Commitment Percentage; provided that Dollar Tranche Percentages (after giving effect to the reallocation provisions of Sections 2.05(d) and 2.06(k)) but only to the extent (A) the sum of all non-Defaulting Lenders’ Dollar Tranche Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure does not exceed the total of all non-Defaulting Dollar Tranche Lenders’ Dollar Tranche Commitments and (B) each Nonnon-Defaulting Lender’s Dollar Tranche Revolving Credit Exposure may in respect of any Class does not exceed such non-Defaulting Lender’s Dollar Tranche Commitment in any event exceed the Revolving Credit Commitment respect of such Non-Defaulting Lender as in effect at the time of such reallocation Class; and (B) subject to Section 13.21, neither such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Letter of Credit Issuer, the Swingline Lender all or any other Lender may have against part of the Dollar Tranche LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Dollar Tranche Lenders in accordance with their respective Dollar Tranche Percentages (after giving effect to the reallocation provisions of Sections 2.05(d) and 2.06(k)) but only to the extent (C) the sum of all non-Defaulting Lenders’ Dollar Tranche Revolving Credit Exposures plus such Defaulting Lender’s Dollar Tranche LC Exposure does not exceed the total of all non-Defaulting Dollar Tranche Lenders’ Dollar Tranche Commitments and (D) each non-Defaulting Lender’s Dollar Tranche Revolving Credit Exposure in respect of any Class does not exceed such non-Defaulting Lender’s Dollar Tranche Commitment in respect of such Class; and all or cause any part of the Multicurrency Tranche LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Multicurrency Tranche Lenders in accordance with their respective Multicurrency Tranche Percentages but only to be a Nonthe extent (E) the sum of all non-Defaulting Lenders’ Multicurrency Tranche Revolving Credit Exposures plus such Defaulting Lender’s Multicurrency Tranche LC Exposure does not exceed the total of all non-Defaulting Multicurrency Tranche Lenders’ Multicurrency Tranche Commitments and (F) each non-Defaulting Lender, ’s Multicurrency Tranche Revolving Credit Exposure in respect of any Class does not exceed such non-Defaulting Lender’s Multicurrency Tranche Commitment in respect of such Class;
(ii) to if the extent that all or any portion reallocations described in clause (the “unreallocated portion”i) of the Defaulting Lender’s Letter of Credit Exposure and Swingline Exposure above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(c)(i) above or otherwiseeffected, the respective Borrower shall within two one (1) Business Days Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of the Issuing Bank only the respective Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure (after giving pro forma 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 pro forma effect to any partial reallocation pursuant to clause (i) above), in accordance with the procedures set forth in Section 3.8 2.06(j) for so long as such Letter of Credit LC Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes Borrowers cash collateralize any portion of such Defaulting Lender’s Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(c)clause (ii) above, the Borrower Borrowers shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period (and to the extent) such Defaulting Lender’s Letter of Credit LC Exposure is Cash Collateralized, cash collateralized;
(iv) if the Letter of Credit LC Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(c)clause (ii) above, then the fees payable to the Lenders pursuant to Section 4.1(c2.12(a) and Section 2.12(b) shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Revolving Credit Commitment Applicable Percentages and the Borrower shall not be required to pay any fees (after giving effect to the Defaulting Lender pursuant to Section 4.1(creallocation provisions of Sections 2.05(d) with respect to and 2.06(k)); and
(v) if all or any portion of such Defaulting Lender’s Letter of Credit Exposure during the period that such Defaulting Lender’s Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Letter of Credit LC Exposure is neither Cash Collateralized reallocated nor reallocated cash collateralized pursuant to the requirements of this Section 2.16(c)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the Letter of Credit Issuer Issuing Bank or any other Lender hereunder, all letter of credit fees payable under Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure shall be payable to the Letter of Credit Issuer Issuing Bank until and to the extent that such Letter of Credit LC Exposure is Cash Collateralized reallocated and/or reallocated;cash collateralized; and
(d) (i) so long as such Lender is a Defaulting Lender, the Letter of Credit Issuer will Swingline Lender shall not be required to issue fund any new Swingline Loan and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit or amend any outstanding Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereofCredit, unless the Letter of Credit Issuer it is reasonably satisfied that any the related exposure that would result from and the exposure to such Defaulting Lender is eliminated or fully Lender’s then outstanding LC Exposure will be 100% covered by the Revolving Credit Commitments of the Nonnon-Defaulting Lenders or and/or cash collateral will be provided by Cash Collateralization or a combination thereof the Borrowers in accordance with the requirements Section 2.22(c), and participating interests in any such newly made Swingline Loan or any newly issued or increased Letter of Section 2.16(c) above or otherwise Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.22(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to a Holding Company of any Lender shall occur following the Closing Date and for so long as such event shall continue or (ii) the Swingline Lender or the Issuing Bank has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless the Swingline Lender or the Issuing Bank, as the case may be, shall have entered into arrangements with the Borrowers or such Lender, reasonably satisfactory to the Letter Swingline Lender or the Issuing Bank, as the case may be, to defease any risk to it in respect of Credit Issuersuch Lender hereunder. In the event that the Administrative Agent, the Borrowers, the Issuing Bank 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 Swingline Exposure and LC 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 Dollar Tranche Revolving Loans of any Class (other than Swingline Loans) and/or Multicurrency Tranche Revolving Loans of any Class 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 Applicable Percentage; andprovided 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’s having been a Defaulting Lender.
Appears in 2 contracts
Sources: Credit Agreement (Endo International PLC), Credit Agreement (Endo International PLC)
Defaulting Lenders. 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) fees shall cease to accrue on the unfunded portion of the Revolving Commitment of such Defaulting Lender pursuant to Section 4.1(a2.12(a);
(b) the unused Commitment of and the Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all the Required Lenders or the Required Lenders or any other requisite Lenders Revolving Lenders, as applicable, have taken or may take any action hereunder (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 13.19.02); provided that this clause (ib) any waivershall not apply to the vote of a Defaulting Lender in the case of an amendment, amendment waiver or other modification requiring the consent of all Lenders such Lender or each Lender affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lender and (ii) the Commitment of any Defaulting Lender may not be increased or extended without the consent of such Lenderthereby under Section 9.02;
(c) if any Swingline Exposure or Letter of Credit LC Exposure exists at the time a such Revolving Lender becomes a Defaulting Lender, then Lender then:
(i) so long as no Default has occurred and is continuing: (1) all or any part of such Letter of Credit Exposure of such Defaulting Lender and such the Swingline Exposure of such Defaulting Lender will, subject to the limitation in the proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Dollar Tranche Lenders pro rata in accordance with their respective Revolving Credit Commitment Percentage; provided that Dollar Tranche Percentages (after giving effect to the reallocation provisions of Section 2.05(d)) but only to the extent (A) the sum of all non-Defaulting Lenders’ Dollar Tranche Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure does not exceed the total of all non-Defaulting Dollar Tranche Lenders’ Dollar Tranche Commitments and (B) each Nonnon-Defaulting Lender’s Dollar Tranche Revolving Credit Exposure may in respect of any Class does not exceed such non-Defaulting Lender’s Dollar Tranche Commitment in respect of such Class; and (2) all or any event part of the Dollar Tranche LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Dollar Tranche Lenders in accordance with their respective Dollar Tranche Percentages (after giving effect to the reallocation provisions of Section 2.06(k)) but only to the extent (A) the sum of all non-Defaulting Lenders’ Dollar Tranche Revolving Credit Exposures plus such Defaulting Lender’s Dollar Tranche LC Exposure does not exceed the Revolving Credit Commitment total of such Nonall non-Defaulting Lender as in effect at the time of such reallocation Dollar Tranche Lenders’ Dollar Tranche Commitments and (B) subject to Section 13.21, neither such reallocation nor any payment by a Noneach non-Defaulting Lender pursuant thereto will constitute a waiver or release Lender’s Dollar Tranche Revolving Credit Exposure in respect of any claim the Borrower, the Administrative Agent, the Letter Class does not exceed such non-Defaulting Lender’s Dollar Tranche Commitment in respect of Credit Issuer, the Swingline Lender such Class; and all or any other Lender may have against part of the Multicurrency Tranche LC Exposure of such Defaulting Lender or cause shall be reallocated among the non-Defaulting Multicurrency Tranche Lenders in accordance with their respective Multicurrency Tranche Percentages but only to the extent (E) the sum of all non-Defaulting Lenders’ Multicurrency Tranche Revolving Credit Exposures plus such Defaulting Lender to be a NonLender’s Multicurrency Tranche LC Exposure does not exceed the total of all non-Defaulting Multicurrency Tranche Lenders’ Multicurrency Tranche Commitments and (F) each non-Defaulting Lender, ’s Multicurrency Tranche Revolving Credit Exposure in respect of any Class does not exceed such non-Defaulting Lender’s Multicurrency Tranche Commitment in respect of such Class;
(ii) to if the extent that all or any portion reallocations described in clause (the “unreallocated portion”i) of the Defaulting Lender’s Letter of Credit Exposure and Swingline Exposure above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(c)(i) above or otherwiseeffected, the respective Borrower shall within two one (1) Business Days Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of the Issuing Bank only the respective Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure (after giving pro forma 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 pro forma effect to any partial reallocation pursuant to clause (i) above), in accordance with the procedures set forth in Section 3.8 2.06(j) for so long as such Letter of Credit LC Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(c)clause (ii) above, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period (and to the extent) such Defaulting Lender’s Letter of Credit LC Exposure is Cash Collateralized, cash collateralized;
(iv) if the Letter of Credit LC Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(c)clause (ii) above, then the fees payable to the Lenders pursuant to Section 4.1(c2.12(a) and Section 2.12(b) shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Revolving Credit Commitment Applicable Percentages and the Borrower shall not be required to pay any fees (after giving effect to the Defaulting Lender pursuant to Section 4.1(creallocation provisions of Sections 2.05(d) with respect to and 2.06(k)); and
(v) if all or any portion of such Defaulting Lender’s Letter of Credit Exposure during the period that such Defaulting Lender’s Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Letter of Credit LC Exposure is neither Cash Collateralized reallocated nor reallocated cash collateralized pursuant to the requirements of this Section 2.16(c)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the Letter of Credit Issuer Issuing Bank or any other Lender hereunder, all letter of credit fees payable under Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure shall be payable to the Letter of Credit Issuer Issuing Bank until and to the extent that such Letter of Credit LC Exposure is Cash Collateralized reallocated and/or reallocated;cash collateralized; and
(d) (i) so long as such Lender is a Defaulting Lender, the Letter of Credit Issuer will Swingline Lender shall not be required to issue fund any new Swingline Loan and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit or amend any outstanding Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereofCredit, unless the Letter of Credit Issuer it is reasonably satisfied that any the related exposure that would result from and the exposure to such Defaulting Lender is eliminated or fully Lender’s then outstanding LC Exposure will be 100% covered by the Revolving Credit Commitments of the Nonnon-Defaulting Lenders or and/or cash collateral will be provided by Cash Collateralization or a combination thereof the Borrower in accordance with the requirements Section 2.22(c), and participating interests in any such newly made Swingline Loan or any newly issued or increased Letter of Section 2.16(c) above or otherwise Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.22(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to a Holding Company of any Lender shall occur following the Effective Date and for so long as such event shall continue or (ii) the Swingline Lender or the Issuing Bank has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless the Swingline Lender or the Issuing Bank, as the case may be, shall have entered into arrangements with the Borrower or such Lender, reasonably satisfactory to the Letter Swingline Lender or the Issuing Bank, as the case may be, to defease any risk to it in respect of Credit Issuersuch Lender hereunder. In the event that the Administrative Agent, the Borrower, the Issuing Bank 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 Swingline Exposure and LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such ▇▇▇▇▇▇’s Commitment and on such date such Lender shall purchase at par such of the Dollar Tranche Revolving Loans of any Class (other than Swingline Loans) and/or Multicurrency Tranche Revolving Loans of any Class 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 Applicable Percentage; andprovided 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; provided, further, that, subject to Section 9.19, 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 ▇▇▇▇▇▇’s having been a Defaulting Lender.
Appears in 2 contracts
Sources: Credit Agreement (Endo, Inc.), Credit Agreement (Endo, Inc.)
Defaulting Lenders. 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 Commitment of such Defaulting Lender pursuant to Section 4.1(a2.5(a);
(b) the Commitment and Revolving Extensions of and the Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders or any other requisite Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 13.110.1); , provided that (i) 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 (ii) any waiver, amendment or modification increasing the Commitment amount or extending the expiration date of such Defaulting Lender’s Revolving Commitment, reducing the stated rate of any interest payable hereunder to such Defaulting Lender may not be increased or extended without extending the scheduled date of any payment thereof to such Defaulting Lender that would, absent this Section 2.20(b), require the consent of such Defaulting Lender pursuant to Section 10.1 shall require the consent of such Defaulting Lender;.
(c) if any Swingline Exposure or Letter of Credit LC Exposure exists at the time a Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Letter of Credit Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the proviso below, automatically and LC Exposure shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata in accordance with their respective Revolving Percentages but only to the extent (x)
(1) the sum of all non-Defaulting Lenders’ Revolving Extensions of Credit Commitment Percentage; provided that plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the total of all non-Defaulting Lenders’ Revolving Commitments and (A2) each Nonnon-Defaulting Lender’s Revolving Extensions of Credit Exposure may not in any event exceed the plus its Revolving Credit Commitment Percentage of such Non-Defaulting Lender as in effect at the time of Lender’s Swingline Exposure and LC Exposure does not exceed such reallocation and (B) subject to Section 13.21, neither such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Letter of Credit Issuer, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Nonnon-Defaulting Lender, ’s Revolving Commitment and (y) the conditions set forth in Section 5.2 are satisfied at such time;
(ii) to if the extent that all or any portion reallocation described in clause (the “unreallocated portion”i) of the Defaulting Lender’s Letter of Credit Exposure and Swingline Exposure above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(c)(i) above or otherwiseeffected, the Borrower Company shall within two one Business Days Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of the Issuing Lender only such Defaulting Lender’s LC Exposure (after giving pro forma 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 pro forma effect to any partial reallocation pursuant to clause (i) above), in accordance with the procedures set forth in the last paragraph of Section 3.8 8 for so long as such Letter of Credit LC Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes Company cash collateralizes any portion of such Defaulting Lender’s Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(c2.20(c), the Borrower Company shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c) 3.3 with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Letter of Credit LC Exposure is Cash Collateralized, cash collateralized;
(iv) if the Letter of Credit LC Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(c2.20(c), then the fees payable to the Lenders pursuant to Section 4.1(c2.5(a) and Section 3.3 shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay Percentages; and
(v) if all or any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to portion of such Defaulting Lender’s Letter of Credit Exposure during the period that such Defaulting Lender’s Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Letter of Credit LC Exposure is neither Cash Collateralized cash collateralized nor reallocated pursuant to the requirements of this Section 2.16(c2.20(c), then, without prejudice to any rights or remedies of the Letter of Credit Issuer Issuing Lender or any 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 Revolving Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 4.1(c) 3.3 with respect to such Defaulting Lender’s Letter of Credit LC Exposure shall be payable to the Letter of Credit Issuer Issuing Lender until such Letter of Credit LC Exposure is Cash Collateralized cash collateralized and/or reallocated;; and
(d) (i) so long as any Lender is a Defaulting Lender, the Letter of Credit Issuer will Swingline Lender shall not be required to issue fund any new 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 and/or cash collateral will be provided by the Company in accordance with Section 2.20(c), and participating interests in any such newly made Swingline Loans or any newly issued or increased Letter of Credit or amend shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i) (and Defaulting Lenders shall not participate therein); and
(e) any outstanding Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the Letter of Credit Issuer is reasonably satisfied that any exposure that would result from the exposure payable to such Defaulting Lender is eliminated hereunder (whether on account of principal, interest, fees or fully covered otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 10.7 but excluding Section 10.1(d)) shall, in lieu of being distributed to such Defaulting Lender, be retained by the Revolving Credit Commitments 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 Issuing Lender hereunder, (iii) third, if so determined by the Administrative Agent or requested by an Issuing Bank, held in such account as cash collateral for future funding obligations of the NonDefaulting Lender in respect of any existing or future participating interest in any Letter of Credit, (iv) fourth, to the funding of any Revolving 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 in respect of any Revolving Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders or an Issuing Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender or such Issuing Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, (vii) seventh, to the payment of any amounts owing to the 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, with respect to this clause (viii), that if such payment is (x) a prepayment of the principal amount of any Revolving Loans or Reimbursement Obligation in respect of which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 5.2 are satisfied, such payment shall be applied solely to prepay the Revolving Loans of, and Reimbursement Obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Revolving Loans, or by Cash Collateralization Reimbursement Obligations owed to, any Defaulting Lender. If (i) a Bankruptcy Event with respect to a parent company of any Lender shall 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 combination thereof 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 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 the Swingline Lender or the Issuing Lender, as the case may be, shall have entered into arrangements with the Company 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 Lender hereunder; provided this paragraph shall not apply if the Swingline Exposure and LC Exposure of such Lender is reallocated among non-Defaulting Lenders and/or cash collateralized so that the Swingline Lender and Issuing Lender do not have any risk in respect of such Lender. In the event that the Administrative Agent, the Company, the Swingline Lender 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 Swingline Exposure and LC Exposure 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 (other than Swingline Loans) as the Administrative shall determine may be necessary in order for such Lender to hold such Revolving Loans in accordance with the requirements of Section 2.16(c) above or otherwise in a manner reasonably satisfactory to the Letter of Credit Issuer; andits Revolving Percentage.
Appears in 2 contracts
Sources: Credit Agreement (Lear Corp), Credit Agreement (Lear Corp)
Defaulting Lenders. 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 Commitment Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a);
(b) the The Commitment of and the Revolving Credit Total Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders or any other requisite Majority Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 13.1); provided that (i) any waiver, amendment or modification requiring the consent of all Lenders pursuant to Section 13.1 (other than Section 13.1(a)(J)) or requiring the consent of each affected Lender which affects such Defaulting Lender differently than other affected Lenders pursuant to Section 13.1(a)(A) shall require the consent of such Defaulting Lender (which for the avoidance of doubt would include any change to the Maturity Date applicable to such Defaulting Lender, decreasing or forgiving any principal or interest due to such Defaulting Lender, any decrease of any interest rate applicable to Loans made by such Defaulting Lender (other than the waiving of post-default interest rates) and any increase in such Defaulting Lender’s Commitment) and (ii) any redetermination, whether an increase, decrease or affirmation, of the Borrowing Base shall occur without the participation of a Defaulting Lender, but the Commitment (i.e., the Commitment Percentage of any the Borrowing Base) of a Defaulting Lender may not be increased or extended without the consent of such Defaulting Lender;
(c) if If any Swingline Exposure or Letter of Credit Exposure exists at the time a Lender becomes a Defaulting Lender, then (i) all or any part of such Letter of Credit Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Non-Defaulting Lenders pro rata in accordance with their respective Revolving Credit Commitment PercentagePercentages; provided that (Ai) each Non-Defaulting Lender’s Revolving Credit Total Exposure may not in any event exceed the Revolving Credit Commitment of such Non-Defaulting Lender as in effect at the time of such reallocation and (Bii) subject to Section 13.21, neither such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Letter of Credit Issuer, the Swingline Lender Issuing Banks or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, (ii) to the extent that all or any portion (the “unreallocated portion”) of the Defaulting Lender’s Letter of Credit Exposure and Swingline Exposure cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(c)(i2.18(c)(i) above or otherwise, the Borrower shall within two Business Days following notice by the Administrative Agent (x) first, prepay such Swingline Exposure (after giving pro forma effect to any partial reallocation pursuant to clause (i) above) and (y) secondAgent, Cash Collateralize for the benefit of the applicable Issuing Bank only the Borrower’s obligations corresponding to such Defaulting Lender’s Letter of Credit Exposure (after giving pro forma effect to any partial reallocation pursuant to clause (i) above), in accordance with the procedures set forth in Section 3.8 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 the requirements of this Section 2.16(c2.18(c), the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c4.1(b) with respect to such Defaulting Lender’s 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 the requirements of this Section 2.16(c2.18(c), then the fees Letter of Credit Fees payable to for the account of the Lenders pursuant to Section 4.1(c4.1(b) shall be adjusted in accordance with such Non-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay any fees Letter of Credit Fees to the Defaulting Lender pursuant to Section 4.1(c4.1(b) with respect to such Defaulting Lender’s Letter of Credit Exposure during the period that such Defaulting Lender’s Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Letter of Credit Exposure is neither Cash Collateralized nor reallocated pursuant to the requirements of this Section 2.16(c2.18(c), then, without prejudice to any rights or remedies of the Letter of Credit Issuer any Issuing Bank or any Lender hereunder, all fees Letter of Credit Fees payable under Section 4.1(c4.1(b) with respect to such Defaulting Lender’s Letter of Credit Exposure shall be payable to the Letter of Credit Issuer such Issuing Bank until such Letter of Credit Exposure is Cash Collateralized and/or reallocated;
(d) (i) the Letter of Credit Issuer So long as any Lender is a Defaulting Lender, no Issuing Bank will not be required to issue any new Letter of Credit or amend any outstanding Letter of Credit to increase the face amount Face Amount thereof, alter the drawing terms thereunder or extend the expiry expiration date thereof, unless the Letter of Credit Issuer each Issuing Bank is reasonably satisfied that any exposure that would result from the exposure to such Defaulting Lender is eliminated or fully covered by the Revolving Credit Commitments of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof in accordance with the requirements of Section 2.16(cclause (c) above or otherwise in a manner reasonably satisfactory to the such Issuing Bank, and participating interests in any such newly issued or increased Letter of Credit Issuershall be allocated among Non-Defaulting Lenders in a manner consistent with Section 2.18(c)(i) (and Defaulting Lenders shall not participate therein);
(e) If the Borrower, the Administrative Agent and each Issuing Bank agree in writing in their discretion that a Lender that is a Defaulting Lender should no longer be deemed to be a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon, as of the effective date specified in such notice and subject to any conditions set forth therein, such Lender will cease to be a Defaulting Lender and will be a Non-Defaulting Lender and any applicable Cash Collateral shall be promptly returned to the Borrower and any Letter of Credit Exposure of such Lender reallocated pursuant to Section 2.18(c) shall be reallocated back to such Lender; provided that, except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Non-Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from such Lender’s having been a Defaulting Lender; and
(f) Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of that Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article XI or otherwise), shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by 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 each Issuing Bank hereunder; third, as the Borrower may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which that Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fourth, if so determined by the Administrative Agent and the Borrower, to be held in a non-interest bearing deposit account and released in order to satisfy obligations of that Defaulting Lender to fund Loans under this Agreement; fifth, to the payment of any amounts owing to the Lenders and each Issuing Bank as a result of any judgment of a court of competent jurisdiction obtained by any Lender, such Issuing Bank against that Defaulting Lender as a result of that Defaulting Lender’s breach of its obligations under this Agreement; sixth, so long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against that Defaulting Lender as a result of that Defaulting Lender’s breach of its obligations under this Agreement; and seventh, to that Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is a payment of the principal amount of any Loans or Unpaid Drawings, such payment shall be applied solely to pay the relevant Loans of, and Unpaid Drawings owed to, the relevant non-Defaulting Lenders on a pro rata basis prior to being applied in the manner set forth in this Section 2.18(f). 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 Section 3.8 shall be deemed paid to and redirected by that Defaulting Lender, and each Lender irrevocably consents hereto.
Appears in 2 contracts
Sources: Credit Agreement (Kimbell Royalty Partners, LP), Credit Agreement (Kimbell Royalty Partners, LP)
Defaulting Lenders. 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 Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a2.12(a);.
(b) the The Commitment of and the Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or Lenders, the Super-Majority Lenders, the Required Lenders or any other requisite the Majority Lenders have taken or may take any action hereunder (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 13.111.02); , provided that (i) any waiver, consent, amendment or modification requiring the consent of all Lenders such Lender or each affected Lender which affects shall require the consent of such Defaulting Lender, (ii) any waiver, consent, amendment or modification requiring the consent of each Lender differently than other affected Lenders shall require the consent of such Defaulting Lender (except in respect of any increases in the Borrowing Base or the Maximum Facility Amount), and (iiiii) the Commitment of any such Defaulting Lender may not be increased or extended without the consent of such Defaulting Lender;.
(c) if If any Swingline Exposure or Letter of Credit LC Exposure exists at the time a Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Letter of Credit LC Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Non-Defaulting Lenders pro rata in accordance with their respective Revolving Applicable Percentages but only to the extent (x) the sum (without duplication) of all Non-Defaulting Lenders’ Credit Commitment Percentage; provided that Exposures plus such Defaulting Lender’s LC Exposure does not exceed the total of all Non-Defaulting Lenders’ Commitments, (Ay) the sum of each Non-Defaulting Lender’s Revolving Credit Exposure may plus its reallocated share of such Defaulting Lender’s LC Exposure does not in any event exceed the Revolving Credit Commitment of such Non-Defaulting Lender as in effect at the time of such reallocation Lender’s Commitment, and (Bz) subject to the conditions set forth in Section 13.21, neither such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Letter of Credit Issuer, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, 5.02 are satisfied at that time;
(ii) to if the extent that all or any portion reallocation described in clause (the “unreallocated portion”i) of the Defaulting Lender’s Letter of Credit Exposure and Swingline Exposure above cannot, or can only partially, be so reallocated to Non-Defaulting Lenderseffected, whether by reason of then the first proviso in Section 2.16(c)(iBorrowers shall, within one (1) above or otherwise, the Borrower shall within two Business Days Day following notice by the Administrative Agent (x) firstAgent, prepay cash collateralize for the benefit of the Issuing Bank only the Borrowers’ obligations corresponding to such Swingline Defaulting Lender’s LC Exposure (after giving pro forma 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 pro forma effect to any partial reallocation pursuant to clause (i) above), in accordance with the procedures set forth in Section 3.8 2.06(j) for so long as such Letter of Credit LC Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes Borrowers cash collateralize any portion of such Defaulting Lender’s Letter of Credit LC Exposure pursuant to clause (ii) above, then the requirements of this Section 2.16(c), the Borrower Borrowers shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Letter of Credit LC Exposure is Cash Collateralized, cash collateralized;
(iv) if the Letter of Credit LC Exposure of the Non-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(c)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(c2.12(a) and 2.12(b) shall be adjusted in accordance with such Non-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay Applicable Percentages; and
(v) if all or any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to portion of such Defaulting Lender’s Letter of Credit Exposure during the period that such Defaulting Lender’s Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Letter of Credit LC Exposure is neither Cash Collateralized cash collateralized nor reallocated pursuant to the requirements of this Section 2.16(c)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the Letter of Credit Issuer Issuing Bank or any Lender hereunder, all letter of credit fees payable under Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure shall be payable to the Issuing Bank until and to the extent that such LC Exposure is cash collateralized and/or reallocated.
(d) So long as such Lender is a Defaulting Lender, the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit Issuer until Credit, unless it is satisfied that the related exposure of such Letter of Credit and the Defaulting Lender’s then outstanding LC Exposure is Cash Collateralized and/or reallocated;
(d) (i) the Letter of Credit Issuer will not be required to issue any new Letter of Credit or amend any outstanding Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the Letter of Credit Issuer is reasonably satisfied that any exposure that would result from the exposure to such Defaulting Lender is eliminated or fully 100% covered by the Revolving Credit Commitments of the Non-Defaulting Lenders or and/or cash collateral will be provided by Cash Collateralization or a combination thereof the Borrowers in accordance with the requirements Section 2.22(c), and participating interests in any such newly issued or increased Letter of Section 2.16(c) above or otherwise Credit shall be allocated among Non-Defaulting Lenders in a manner reasonably consistent with Section 2.22(c)(i) (and Defaulting Lenders shall 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) the Issuing Bank has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Issuing Bank shall not be required to issue, amend, or increase any Letter of Credit, unless the Issuing Bank shall have entered into arrangements with the Borrower or such Lender, satisfactory to the Letter Issuing Bank to defease any risk to it in respect of Credit Issuer; andsuch Lender hereunder. In the event that the Administrative Agent, the Borrowers 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 LC 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 as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage.
Appears in 2 contracts
Sources: Credit Agreement (Antero Resources LLC), Credit Agreement (Antero Resources Finance Corp)
Defaulting Lenders. 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 Lender is a Defaulting Lender:
(a) fees Fees shall cease to accrue on the unfunded portion of the Revolving Commitment of such Defaulting Lender pursuant to Section 4.1(a2.12(a);.
(b) the The Revolving Commitment of and the Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment or waiver pursuant to Section 13.110.02); provided that (i) no Commitment of a Defaulting Lender may be increased or extended without such Defaulting Lender’s consent, (ii) no waiver, amendment or other modification may reduce the amount of principal owing to a Defaulting Lender without such Defaulting Lender’s consent and (iii) any waiver, amendment or other 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 (ii) the Commitment of any Defaulting Lender may not be increased or extended without the consent of such Lender;.
(c) if If any Swingline Exposure or Letter of Credit LC Exposure exists or any Foreign Currency Loans are outstanding at the time a Revolving Lender becomes a Defaulting Lender, Lender then (i) all or any part of such Letter of Credit Swingline Exposure, LC Exposure and Foreign Currency Participating Interest of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Revolving Lenders that are Non-Defaulting Lenders pro rata in accordance with their respective Revolving Credit Commitment Percentage; provided that Applicable Percentages but only to the extent (Ax) each the sum of a Non-Defaulting Lenders’ Revolving Exposures plus such Defaulting Lender’s Revolving Credit Swingline Exposure, LC Exposure may and Foreign Currency Participating Interest does not in any event exceed the Revolving Credit Commitment of such Non-Defaulting Lender as in effect at the time of such reallocation Lenders’ Revolving Commitments and (By) subject the conditions set forth in Section 4.02 are satisfied at such time. In the case of any such reallocation, the fees payable to the Revolving Lenders pursuant to Section 13.21, neither 2.12(a) and Section 2.12(b)(i) and the Foreign Currency Loan Participants pursuant to Section 2.12(e) shall be adjusted in accordance with such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim Lenders’ Applicable Percentages.
(d) If the Borrower, the Administrative Agent, the Letter of Credit Issuer, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, reallocation described in clause (iic) to the extent that all or any portion (the “unreallocated portion”) of the Defaulting Lender’s Letter of Credit Exposure and Swingline Exposure above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(c)(i) above or otherwiseeffected, the Parent Borrower shall shall, within two one Business Days Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure, (y) second, cash collateralize such Defaulting Lender’s LC Exposure (after giving pro forma effect to any partial reallocation pursuant to clause (ic) above) in accordance with the procedures set forth in Section 2.05(j) for so long as such LC Exposure is outstanding and (yz) secondthird, Cash Collateralize cash collateralize for the benefit of the Fronting Lender, the obligations of the Parent Borrower and any Foreign Subsidiary Borrower corresponding to such Defaulting Lender’s Letter of Credit Exposure Foreign Currency Participating Interest (after giving pro forma effect to any partial reallocation pursuant to clause (ic) above), in accordance with the procedures set forth in Section 3.8 ) for so long as the circumstances giving rise to such Letter obligation to provide such cash collateral remain relevant (which cash collateralization requirement shall be satisfied by the Parent Borrower depositing such cash collateral into an account opened by the Administrative Agent). In the case of Credit Exposure is outstanding, (iii) if the Borrower Cash Collateralizes any portion of such Defaulting Lender’s Letter of Credit Exposure pursuant to the requirements of this Section 2.16(c)cash collateralization, the Parent Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c2.12(b)(i) (with respect to such Defaulting Lender’s Letter of Credit Exposure during the period such Defaulting Lender’s Letter of Credit Exposure is Cash Collateralized, LC Exposure) or Section 2.12(e) (iv) if the Letter of Credit Exposure of the Non-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(c), then the fees payable to the Lenders pursuant to Section 4.1(c) shall be adjusted in accordance with such Non-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to such Defaulting Lender’s Letter of Credit Exposure during the period that Foreign Currency Participating Interest) for so long as such Defaulting Lender’s Letter of Credit LC Exposure is reallocated, or cash collateralized.
(ve) if If any Defaulting Lender’s Letter of Credit LC Exposure is neither Cash Collateralized cash collateralized nor reallocated pursuant to the requirements of this Section 2.16(c)paragraph (c) or (d) above, then, without prejudice to any rights or remedies of the Letter of Credit Issuer Issuing Bank or any Revolving Lender that is not a Defaulting Lender hereunder, all participation fees payable under Section 4.1(c2.12(b)(i) with respect to such Defaulting Lender’s Letter of Credit LC Exposure shall be payable to the Issuing Bank until such LC Exposure is cash collateralized and/or reallocated pursuant to paragraph (c) and (d) above.
(f) If all or any portion of such Defaulting Lender’s Foreign Currency Participating Interest is neither cash collateralized nor reallocated pursuant to paragraph (c) or (d) above, then, without prejudice to any rights or remedies of the Fronting Lender or any Revolving Lender that is not a Defaulting Lender hereunder, all participation fees payable under Section 2.12(e) with respect to such Defaulting Lender’s Foreign Currency Participating Interest that has not been reallocated or cash collateralized shall be payable to the Fronting Lender until and to the extent such Foreign Currency Participating Interest is cash collateralized and/or reallocated pursuant to paragraph (c) and (d) above.
(g) So long as any Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Revolving Commitments of the Revolving Lenders that are not Defaulting Lenders and/or cash collateral will be provided by the Parent Borrower in accordance with paragraph (c) above, and participating interests in any such newly issued or increased Letter of Credit Issuer until such Letter or newly made Swingline Loan shall be allocated among Revolving Lenders that are not Defaulting Lenders in a manner consistent with paragraph (c) above (and Defaulting Lenders shall not participate therein).
(h) So long as any Lender is a defaulting Lender, the Fronting Lender shall not be required to fund any Fronted Foreign Currency Loan unless it is satisfied that the related exposure and the Defaulting Lender’s Foreign Currency Participating Interest will be 100% covered by the Revolving Commitments of Credit Exposure is Cash Collateralized the Revolving Lenders that are not Defaulting Lenders and/or reallocated;cash collateral will be provided by the Parent Borrower in accordance with paragraph (c) above.
(i) In the event that (i) a Lender becomes a Defaulting Lender as a result of the occurrence of any event described in clause (d) of the definition of the term “Defaulting Lender” with respect to such Lender’s parent company and for so long as such event shall continue or (ii) the Swingline Lender, the Issuing Bank or the Fronting Lender has a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan, the Issuing Bank shall not be required to issue, amend, renew or extend any Letter of Credit, and the Fronting Lender shall not be required to fund any Fronted Foreign Currency Loan, unless the Swingline Lender, the Issuing Bank or the Fronting Lender, as the case may be, shall have entered into arrangements with Holdings and the Parent Borrower or such Revolving Lender satisfactory to the Swingline Lender, the Issuing Bank or the Fronting Lender, as the case may be, to defease any risk to it in respect of such Lender hereunder.
(j) In the event that (x) a Bankruptcy Event with respect to a Revolving Lender Parent shall have occurred following the date hereof and for so long as such Bankruptcy Event shall continue or (y) the Swingline Lender, the Issuing Bank or the Fronting Lender has a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan, the Issuing Bank shall not be required to issue, amend, renew or extend any Letter of Credit, and the Fronting Lender shall not be required to fund any Fronted Foreign Currency Loan, unless the Swingline Lender, the Issuing Bank or the Fronting Lender, as the case may be, shall have entered into arrangements with Holdings and the Parent Borrower or such Revolving Lender satisfactory to the Swingline Lender or the Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder.
(k) In the event that the Administrative Agent, the Parent Borrower, the Issuing Bank, the Fronting Lender 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 Swingline Exposure and LC Exposure of the Revolving 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 (i) the Letter Revolving Loans of Credit Issuer will not be required to issue the other Revolving Lenders (other than Swingline Loans and (other than in the case of any new Letter of Credit or amend any outstanding Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the Letter of Credit Issuer is reasonably satisfied that any exposure that would result from the exposure to such Defaulting Lender that is eliminated or fully covered by a Foreign Currency Lender) Foreign Currency Loans) as the Administrative shall determine may be necessary in order for such Lender to hold such Revolving Credit Commitments of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof Loans in accordance with its Applicable Percentage and (ii) the requirements Foreign Currency Participating Interests of Section 2.16(c) above or otherwise the other Revolving Lenders as the Administrative shall determine may be necessary in a manner reasonably satisfactory order for such Lender to the Letter of Credit Issuer; andhold such in Foreign Currency Participating Interests accordance with its ratable share thereof.
Appears in 2 contracts
Sources: Incremental Facility Agreement (Trimas Corp), Credit Agreement (Trimas Corp)
Defaulting Lenders. 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 and Tranche A Term Loan Commitment of such Defaulting Lender pursuant to Section 4.1(a2.11(a);
(b) the Revolving Credit Commitment of and the Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders or any other requisite Lenders have taken or may take any action hereunder (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 13.19.02); provided provided, that this clause (ib) any waivershall not apply to the vote of a Defaulting Lender in the case of an amendment, amendment waiver or other modification requiring the consent of all Lenders such Lender or each Lender affected Lender which affects such Defaulting Lender differently than other or directly affected Lenders shall require the consent of such Defaulting Lender and (ii) the Commitment of any Defaulting Lender may not be increased or extended without the consent of such Lenderthereby;
(c) if any Swingline Exposure or Letter of Credit LC Exposure exists at the time a such Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Letter of Credit the Swingline Exposure and LC Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Revolving Credit Lenders pro rata in accordance with their respective Applicable Percentages but only to the extent the sum of all non-Defaulting Revolving Credit Commitment Percentage; provided that (A) each Non-Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the total of all non-Defaulting Revolving Credit Exposure may not in any event exceed the Revolving Credit Commitment of such Non-Defaulting Lender as in effect at the time of such reallocation and (B) subject to Section 13.21, neither such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Letter of Credit Issuer, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, Lenders’ Commitments;
(ii) to if the extent that all or any portion reallocation described in clause (the “unreallocated portion”i) of the Defaulting Lender’s Letter of Credit Exposure and Swingline Exposure above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(c)(i) above or otherwiseeffected, the Borrower shall within two one Business Days Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of the Issuing Lender only the Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure (after giving pro forma 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 pro forma effect to any partial reallocation pursuant to clause (i) above), in accordance with the procedures set forth in Section 3.8 2.05(k) for so long as such Letter of Credit LC Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(c)clause (ii) above, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c2.11(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Letter of Credit LC Exposure is Cash Collateralized, cash collateralized;
(iv) if the Letter of Credit LC Exposure of the Nonnon-Defaulting Revolving Credit Lenders is reallocated pursuant to the requirements of this Section 2.16(c)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(c2.11(b) shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay Applicable Percentages; and
(v) if all or any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to portion of such Defaulting Lender’s Letter of Credit Exposure during the period that such Defaulting Lender’s Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Letter of Credit LC Exposure is neither Cash Collateralized reallocated nor reallocated cash collateralized pursuant to the requirements of this Section 2.16(c)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the Letter of Credit Issuer Issuing Lender or any other Lender hereunder, all letter of credit fees payable under Section 4.1(c2.11(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure shall be payable to the Letter of Credit Issuer Issuing Lender until and to the extent that such Letter of Credit LC Exposure is Cash Collateralized reallocated and/or reallocated;cash collateralized; and
(d) (i) the Letter of Credit Issuer will not so long as such Lender is a Defaulting Lender, no Swingline Lender shall be required to issue fund any new Swingline Loan and no Issuing Lender shall be required to issue, amend or increase any Letter of Credit or amend any outstanding Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereofCredit, unless the Letter of Credit Issuer it is reasonably satisfied that any the related exposure that would result from and the exposure to such Defaulting Lender is eliminated or fully Lender’s then outstanding LC Exposure will be 100% covered by the Revolving Credit Commitments of the Nonnon-Defaulting Revolving Credit Lenders or and/or cash collateral will be provided by Cash Collateralization or a combination thereof the Borrower in accordance with the requirements Section 2.19(c), and participating interests in any newly made Swingline Loan or any newly issued or increased Letter of Section 2.16(c) above or otherwise Credit shall be allocated among non-Defaulting Revolving Credit Lenders in a manner reasonably consistent with Section 2.19(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to a Parent of any Revolving Credit Lender shall occur following the date hereof and for so long as such event shall continue or (ii) any Swingline Lender or any Issuing Lender has a good faith belief that any Revolving Credit Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, such Swingline Lender shall not be required to fund any Swingline Loan and such Issuing Lender shall not be required to issue, amend or increase any Letter of Credit, unless such Swingline Lender or such Issuing Lender, as the case may be, shall have entered into arrangements with the Borrower or such Lender, satisfactory to such Swingline Lender or such Issuing Lender, as the Letter case may be, to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the Borrower, each Swingline Lender and each Issuing Lender each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure of the Revolving Credit Issuer; andLenders shall be readjusted to reflect the inclusion of such Lender’s Revolving Credit Commitment and on such date such Lender shall purchase at par such of the Revolving Credit Loans of the other Revolving Credit Lenders as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage.
Appears in 2 contracts
Sources: Credit Agreement (Geo Group Inc), Credit Agreement (Geo Group Inc)
Defaulting Lenders. 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 pursuant to Section 2.10(a) shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(athe extent, and during the period in which, such Lender is a Defaulting Lender (and the Borrower shall not be required to pay any such commitment fee that otherwise would have accrued and been required to have been paid to such Defaulting Lender to the extent and during the period in which such Lender is a Defaulting Lender);
(b) the Commitment of and the Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, two-thirds of the Lenders or the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment or waiver pursuant to Section 13.19.02, except for any amendment or waiver described in Section 9.02(b)(i), (ii), (iii) or (iv)); provided that (i) any waiver, amendment or modification requiring the consent of all Lenders, two-thirds of the Lenders or each affected Lender which affects such Defaulting Lender differently than other Lenders or affected Lenders (as applicable) shall require the consent of such Defaulting Lender and (ii) the Commitment of any Defaulting Lender may not be increased or extended without the consent of such Lender;.
(c) if any Swingline Exposure or Letter of Credit LC Exposure exists at the time a Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Letter of Credit LC Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata in accordance with their respective Revolving Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Credit Commitment Percentage; provided that Exposures plus such Defaulting Lender’s LC Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments, (Ay) each Nonno non-Defaulting Lender’s Revolving Credit Exposure may not in any event will exceed the Revolving Credit Commitment of such Non-Defaulting Lender as in effect at the time of such reallocation Lender’s Commitment, and (Bz) subject to the conditions set forth in Section 13.21, neither 4.02 are satisfied at such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim time (and unless the BorrowerBorrower has notified the Administrative Agent at such time, the Administrative Agent, the Letter of Credit Issuer, the Swingline Lender or any other Lender may Borrower shall be deemed to have against represented and warranted that such Defaulting Lender or cause conditions are satisfied at such Defaulting Lender to be a Non-Defaulting Lender, time);
(ii) to if the extent that all or any portion reallocation described in clause (the “unreallocated portion”i) of the Defaulting Lender’s Letter of Credit Exposure and Swingline Exposure above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(c)(i) above or otherwiseeffected, the Borrower shall shall, without prejudice to any right or remedy available to it hereunder or under law, within two three Business Days following notice by the Administrative Agent (x) firstAgent, prepay Cash Collateralize such Swingline Defaulting Lender’s LC Exposure (after giving pro forma 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 pro forma effect to any partial reallocation pursuant to clause (i) above), in accordance with the procedures set forth in Section 3.8 2.04(k) for so long as such Letter of Credit LC Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes any portion of such Defaulting Lender’s Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(c)clause (ii) above, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c2.10(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Letter of Credit LC Exposure is Cash Collateralized, ;
(iv) if the Letter of Credit LC Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(c)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(c2.10(a) and Section 2.10(b) shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to such Defaulting Lender’s Letter of Credit Exposure during the period that such Defaulting Lender’s Letter of Credit Exposure is reallocated, or Applicable Percentages;
(v) if any Defaulting Lender’s Letter of Credit LC Exposure is neither Cash Collateralized nor reallocated pursuant to the requirements of this Section 2.16(c2.17(c), then, without prejudice to any rights or remedies of the Letter of Credit Issuer Issuing Bank or any 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 LC Exposure) and letter of credit fees payable under Section 4.1(c2.10(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure shall be payable to the Letter of Credit Issuer Issuing Bank until such Letter of Credit LC Exposure is Cash Collateralized and/or reallocated;; and
(vi) subject to Section 9.16, no reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Lender having become a Defaulting Lender, including any claim of a non-Defaulting Lender as a result of such non-Defaulting Lender’s increased exposure following such reallocation.
(d) (i) so long as any Lender is a Defaulting Lender, the Letter of Credit Issuer will Issuing Bank shall not be required to issue issue, amend or increase any new 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 Section 2.17(c), and participating interests in any such newly issued or increased Letter of Credit or amend any outstanding Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the Letter of Credit Issuer is reasonably satisfied that any exposure that would result from the exposure to such Defaulting Lender is eliminated or fully covered by the Revolving Credit Commitments of the Nonshall be allocated among non-Defaulting Lenders or by in a manner consistent with Section 2.17(c)(i) (and Defaulting Lenders shall not participate therein). In the event that the Administrative Agent, the Borrower and the Issuing Bank each agrees in writing that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then, on the date of such agreement, such Lender shall no longer be deemed a Defaulting Lender, the Borrower shall no longer be required to Cash Collateralization or a combination thereof Collateralize any portion of such Lender’s LC Exposure Cash Collateralized pursuant to Section 2.17(c)(ii) above, the LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and such Lender shall purchase at par the portion 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 the requirements of Section 2.16(c) above or otherwise its Applicable Percentage in a manner reasonably satisfactory effect immediately after giving effect to the Letter of Credit Issuer; andsuch agreement.
Appears in 2 contracts
Sources: Senior Secured Revolving Credit Agreement (Oaktree Specialty Lending Corp), Senior Secured Revolving Credit Agreement (Oaktree Specialty Lending Corp)
Defaulting Lenders. 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 daily unused amount of the Commitment of such Defaulting Lender pursuant to Section 4.1(a2.12(a);
(b) the Commitment of and the Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders or any other requisite Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 13.19.02); provided that (i) 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 (ii) any amendment or modification that increases, or extends the maturity of, such Defaulting Lender’s Commitment of any Defaulting Lender may not be increased or extended without shall require the consent of such Defaulting Lender;
(c) if any Swingline Exposure or Letter of Credit LC Exposure exists at the time a Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Letter of Credit Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the proviso below, automatically be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Non-Defaulting Lenders pro rata in accordance with their respective Revolving Credit Commitment Percentage; provided that (A) each Non-Defaulting Lender’s Revolving Credit Exposure may not in any event exceed the Revolving Credit Commitment of such Non-Defaulting Lender as in effect at the time of such reallocation and (B) subject to Section 13.21, neither such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Letter of Credit Issuer, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, (ii) to the extent that all or any portion (the “unreallocated portion”) of the Defaulting Lender’s Letter of Credit Exposure and Swingline Exposure cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(c)(i) above or otherwise, the Borrower shall within two one (1) Business Days Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure (after giving pro forma effect to any partial reallocation pursuant to clause (i) above) and (y) second, Cash Collateralize cash collateralize such Defaulting Lender’s Letter of Credit LC Exposure (after giving pro forma effect to any partial reallocation pursuant to clause (i) above), in accordance with the procedures set forth in Section 3.8 2.06(j) for so long as such Letter of Credit LC Exposure is outstanding, ;
(iiiii) if the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(c2.21(c), the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Letter of Credit LC Exposure is Cash Collateralized, cash collateralized;
(iv) if the Letter of Credit Exposure of the Non-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(c), then the fees payable to the Lenders pursuant to Section 4.1(c) shall be adjusted in accordance with such Non-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to such Defaulting Lender’s Letter of Credit Exposure during the period that such Defaulting Lender’s Letter of Credit Exposure is reallocated, or (viii) if any Defaulting Lender’s Letter of Credit LC Exposure is neither Cash Collateralized nor reallocated not cash collateralized pursuant to the requirements of this Section 2.16(c2.21(c), then, without prejudice to any rights or remedies of the Letter of Credit Issuer Issuing Bank or any Lender hereunder, all letter of credit fees payable under Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure shall be payable to the Letter of Credit Issuer Issuing Bank until such Letter of Credit LC Exposure is Cash Collateralized and/or reallocated;cash collateralized; and
(d) (i) so long as any Lender is a Defaulting Lender, the Letter of Credit Issuer will Swingline Lender shall not be required to issue fund any new Swingline Loan and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit or amend any outstanding Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereofCredit, unless the Letter of Credit Issuer it is reasonably satisfied that any exposure that would result from the exposure to such Defaulting Lender is eliminated or fully covered cash collateral will be provided by the Revolving Credit Commitments of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof Borrower in accordance with Section 2.21(c). In the requirements event that the Administrative Agent, the Borrower, each Issuing Bank 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 on such date such Lender shall purchase at par such of Section 2.16(c) above or otherwise the Loans of the other Lenders as the Administrative shall determine may be necessary in a manner reasonably satisfactory order for such Lender to the Letter of Credit Issuer; andhold such Loans in accordance with its Applicable Percentage.
Appears in 2 contracts
Sources: Credit Agreement (Inergy L P), Credit Agreement (Inergy Holdings, L.P.)
Defaulting Lenders. 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 Available Revolving Commitment of such Defaulting Lender pursuant to Section 4.1(a2.12(a);
(b) the Tranche A Revolving Commitment of or, Tranche B Commitment or Tranche C Commitment and the U.S. Revolving Credit Exposure, Canadian Revolving Exposure or, Tranche B Exposure or Tranche C Exposure, as applicable, of such Defaulting Lender shall not be included in determining whether all Lenders or Lenders, all affected Lenders, the Required Lenders or any other requisite the Super Majority Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 13.19.02); provided that (i) any waiver, amendment or modification requiring the consent of all Revolving Lenders or each affected Revolving Lender which affects such Defaulting Lender differently than other affected Revolving Lenders shall require the consent of such Defaulting Lender and (ii) the Commitment of any Defaulting Lender may not be increased or extended without the consent of such Lender;
(c) if any Swingline Exposure or Letter of Credit LC Exposure exists at the time a an Applicable Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Letter of Credit Swingline Exposure and LC Exposure of such Applicable Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject with respect to the limitation in Borrowers within the proviso below, automatically applicable Borrower Group shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Non-Applicable Tranche A Lenders that are not Defaulting Lenders pro rata with respect to such Borrower Group in accordance with their respective Applicable Percentages (excluding, for purposes of calculating the Applicable Percentages, the Commitments and Loans of the Applicable Defaulting Lender) but only to the extent (x) the sum of all non-Applicable Defaulting Lenders’ U.S. Revolving Credit Commitment Percentage; provided that (A) each Non-Exposures or Canadian Revolving Exposures, as applicable, plus such Applicable Defaulting Lender’s Revolving Credit Swingline Exposure may and LC Exposure with respect to such Borrower Group does not in any event exceed the lesser of the total of the Tranche A Revolving Credit Commitment Commitments of all the Applicable Tranche A Lenders that are not Defaulting Lenders such Non-Defaulting Lender Borrower Group and the U.S. Borrowing Base or Canadian Borrowing Base, as in effect at the time of such reallocation applicable, and (By) subject to the conditions set forth in Section 13.21, neither 4.02 are satisfied at such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Letter of Credit Issuer, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, time; and
(ii) to if the extent that all or any portion reallocation described in clause (the “unreallocated portion”i) of the Defaulting Lender’s Letter of Credit Exposure and Swingline Exposure above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(c)(i) above or otherwiseeffected, the Borrowers within the applicable Borrower Group shall within two three (3) Business Days following notice by the Administrative Agent (x) first, prepay such the Swingline Exposure of such Applicable Defaulting Lender with respect to such Borrower Group and (y) second, cash collateralize such Applicable Defaulting Lender’s LC Exposure with respect to such Borrower Group (after giving pro forma 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 pro forma effect to any partial reallocation pursuant to clause (i) above), in accordance with the procedures set forth in Section 3.8 2.06(j) for so long as such Letter of Credit LC Exposure is outstanding, ;
(iii) if the Borrowers within a Borrower Cash Collateralizes Group cash collateralize any portion of such Applicable Defaulting Lender’s Letter of Credit LC Exposure with respect to such Borrower Group pursuant to the requirements of this Section 2.16(c2.28(c), the Borrowers within such Borrower Group shall not be required to pay any fees to such Applicable Defaulting Lender pursuant to Section 4.1(c2.12(b) with respect to such Applicable Defaulting Lender’s Letter of Credit LC Exposure to such Borrowers during the period to the extent such Applicable Defaulting Lender’s Letter of Credit LC Exposure is Cash Collateralized, cash collateralized;
(iv) if the Letter of Credit LC Exposure of the Non-Applicable Defaulting Lenders Lender with respect to the Borrowers within a Borrower Group is reallocated pursuant to the requirements of this Section 2.16(c2.28(c), then the fees payable to the non-Applicable Defaulting Lenders pursuant to Section 4.1(c2.12(a) and Section 2.12(b) shall be adjusted in accordance with such Nonnon-Applicable Defaulting Lenders’ Revolving Credit Commitment Applicable Percentages (excluding, for purposes of calculating the Applicable Percentages, the Commitments and Loans of the Borrower shall not be required to pay any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to such Applicable Defaulting Lender’s Letter of Credit Exposure during the period that such Defaulting Lender’s Letter of Credit Exposure is reallocated, or ); or
(v) if any Applicable Defaulting Lender’s Letter of Credit LC Exposure is neither Cash Collateralized cash collateralized nor reallocated pursuant to the requirements of this Section 2.16(c2.28(c), then, without prejudice to any rights or remedies of the Letter of Credit Issuer Applicable Issuing Bank or any Lender hereunder, all letter of credit fees payable under Section 4.1(c2.12(b) with respect to such Applicable Defaulting Lender’s Letter of Credit LC Exposure shall be payable to the Letter of Credit Issuer Applicable Issuing Bank until such Letter of Credit LC Exposure is Cash Collateralized cash collateralized and/or reallocated;
(d) (i) so long as any Applicable Lender is a Defaulting Lender, the Letter of Credit Issuer will Applicable Swingline Lender shall not be required to issue fund any new Swingline Loan and the Applicable Issuing Banks 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 Borrower Group Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers within such Borrower Group in accordance with Section 2.28(c), and participating interests in any such newly issued or increased Letter of Credit or amend any outstanding Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the Letter of Credit Issuer is reasonably satisfied that any exposure that would result from the exposure to such Defaulting Lender is eliminated or fully covered by the Revolving Credit Commitments of the Nonnewly made Swingline Loan shall be allocated among non-Defaulting Lenders or by Cash Collateralization or to such Borrower Group in a combination thereof manner consistent with Section 2.28(c)(i) (and Defaulting Lenders shall not participate therein); and
(e) in the event and on the date that each of the Agent, the Borrower Agent, the Applicable Issuing Banks and the Applicable Swingline Lender agrees that a Defaulting Lender has adequately remedied all matters that caused such Applicable Tranche A Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure of the other Applicable Tranche A Lenders shall be readjusted to reflect the inclusion of the Tranche A Revolving Commitment of the Applicable Tranche A Lender that previously was a Defaulting Lender and on such date such Applicable Tranche A Lender shall purchase at par such of the Loans of the other Applicable Tranche A Lenders (other than Swingline Loans) as the Agent shall determine may be necessary in order for such Applicable Tranche A Lender to hold such Loans in accordance with the requirements of Section 2.16(c) above or otherwise in a manner reasonably satisfactory to the Letter of Credit Issuer; andits Applicable Percentage.
Appears in 2 contracts
Sources: Credit Agreement (ATD Corp), Credit Agreement (ATD Corp)
Defaulting Lenders. Notwithstanding any provision of this Agreement anything to the contrarycontrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long then, until such time as such Lender is no longer a Defaulting Lender, to the extent permitted by applicable law:
(a) fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a2.11(a);
(b) the Commitment of and the Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 13.19.2); provided provided, that (i) any waiveramendment, amendment waiver or other modification requiring the consent of all Lenders or each all Lenders affected Lender which affects thereby shall, if such Defaulting Lender differently than other is an affected Lenders shall Lender, except as otherwise provided in Section 9.2, require the consent of such Defaulting Lender and (ii) in accordance with the Commitment of any Defaulting Lender may not be increased or extended without the consent of such Lenderterms hereof;
(c) if any Swingline Exposure or Letter of Credit LC Exposure exists at the time a such Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Letter of Credit the Swingline Exposure and LC Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the proviso below, automatically shall be reallocated (effective on as of the day date such Lender becomes a Defaulting Lender) among the Non-Defaulting Lenders pro rata in accordance with their respective Applicable Percentages (for the purposes of such reallocation, such Defaulting Lender’s Commitment shall be disregarded in determining the Non-Defaulting Lenders’ respective Applicable Percentages) but only to the extent (x) the sum of all Non-Defaulting Lenders’ Revolving Credit Commitment Percentage; provided that Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the total of all Non-Defaulting Lenders’ Commitments and (Ay) after giving effect to any such reallocation, each Non-Defaulting Lender’s Revolving Credit Exposure may does not in any event exceed the Revolving Credit Commitment of such Non-Defaulting Lender as in effect at the time of such reallocation and (B) subject to Section 13.21, neither such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Letter of Credit Issuer, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, ’s Commitment;
(ii) to if the extent that all or any portion reallocation described in clause (the “unreallocated portion”i) of the Defaulting Lender’s Letter of Credit Exposure and Swingline Exposure above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(c)(i) above or otherwiseeffected, the Borrower Borrowers shall within two three (3) Business Days following written notice to the Lead Borrower by the Administrative Agent (x) first, prepay such Swingline Exposure that has not been reallocated and (y) second, cash collateralize for the benefit of the applicable Issuing Banks only the Borrowers’ Obligations corresponding to such Defaulting Lender’s LC Exposure that has not been reallocated (after giving pro forma 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 pro forma effect to any partial reallocation pursuant to clause (i) above), in accordance with the procedures set forth in Section 3.8 2.5(i) for so long as such Letter of Credit LC Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes Borrowers cash collateralize any portion of such Defaulting Lender’s Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(c)clause (ii) above, the Borrower Borrowers shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c2.11(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Letter of Credit LC Exposure is Cash Collateralized, cash collateralized;
(iv) if the Letter of Credit LC Exposure of the Non-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(c)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(c2.11(a) and Section 2.11(b) shall be adjusted in accordance with to give effect to such Non-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay reallocation; and
(v) if all or any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to portion of such Defaulting Lender’s Letter of Credit Exposure during the period that such Defaulting Lender’s Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Letter of Credit LC Exposure is neither Cash Collateralized reallocated nor reallocated cash collateralized pursuant to the requirements of this Section 2.16(c)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the Letter of Credit Issuer any Issuing Bank or any other Lender hereunder, all Letter of Credit fees that otherwise would have been payable to such Defaulting Lender under Section 4.1(c2.11(b) with respect to such Defaulting Lender’s Letter of Credit unreallocated LC Exposure shall be payable to the Letter applicable Issuing Banks ratably based on the portion of such LC Exposure attributable to Letters of Credit Issuer issued by such Issuing Bank, until and to the extent that such Letter of Credit LC Exposure is Cash Collateralized reallocated and/or reallocated;cash collateralized pursuant to clause (i) or (ii) above; and
(d) (i) so long as such Lender is a Defaulting Lender, the Letter of Credit Issuer will Swingline Lender shall not be required to issue fund any new Swingline Loan and no Issuing Bank shall be required to issue, amend or increase any Letter of Credit or amend any outstanding Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereofCredit, unless the Letter of Credit Issuer it is reasonably satisfied that any the related exposure that would result from and the exposure to such Defaulting Lender is eliminated or fully Lender’s then outstanding LC Exposure will be 100% covered by the Revolving Credit Commitments of the Non-Defaulting Lenders or and/or cash collateral will be provided by Cash Collateralization or a combination thereof the Borrowers in accordance with the requirements this Section 2.22, and participating interests in any such newly made Swingline Loan or any newly issued or increased Letter of Section 2.16(c) above or otherwise Credit shall be allocated among Non-Defaulting Lenders in a manner reasonably consistent with this Section 2.22 (and such Defaulting Lender shall not participate therein). In the event that (x) a direct or indirect parent company of a Lender becomes the subject of a proceeding under any Debtor Relief Law following the Third Restatement Effective Date and for so long as such proceeding under any Debtor Relief Law shall continue or (y) the Swingline Lender or any 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, the Swingline Lender shall not be required to fund any Swingline Loan, and such Issuing Bank shall not be required to issue, amend, renew or extend any Letter of Credit, unless the Swingline Lender or such Issuing Bank, as the case may be, shall have entered into arrangements with the Borrowers or such Lender satisfactory to the Letter Swingline Lender or such Issuing Bank, as the case may be, to defease any risk to it in respect of Credit Issuersuch Lender hereunder. In the event that each of the Administrative Agent, the Borrowers, the Swingline Lender and each Issuing Bank agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such 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 the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage; andprovided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of any Borrower 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.
Appears in 2 contracts
Sources: Revolving Credit Agreement (CF Industries Holdings, Inc.), Revolving Credit Agreement (CF Industries Holdings, Inc.)
Defaulting Lenders. 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 Commitment of such Defaulting Lender pursuant to Section 4.1(a2.12(a);
(b) the Commitment of and the Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all the Required Lenders, the Majority in Interest of the Revolving Lenders or the Required Lenders or any other requisite Majority in Interest of the Term Lenders have taken or may take any action hereunder (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 13.19.02); provided provided, that this clause (ib) any waivershall not apply to the vote of a Defaulting Lender in the case of an amendment, amendment waiver or other modification requiring the consent of all Lenders such Lender or each Lender affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lender and (ii) the Commitment of any Defaulting Lender may not be increased or extended without the consent of such Lenderthereby;
(c) if any Swingline Exposure or Letter of Credit LC Exposure exists at the time a such Lender becomes a Defaulting Lender, then Lender then:
(i) so long as no Default has occurred and is continuing: all or any part of such Letter of Credit Exposure of such Defaulting Lender and such the Swingline Exposure of such Defaulting Lender will, subject to the limitation in the proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Dollar Tranche Lenders pro rata in accordance with their respective Revolving Credit Commitment Percentage; provided that Dollar Tranche Percentages but only to the extent (A) the sum of all non-Defaulting Lenders’ Dollar Tranche Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure does not exceed the total of all non-Defaulting Dollar Tranche Lenders’ Dollar Tranche Commitments and (B) each Nonnon-Defaulting Lender’s Dollar Tranche Revolving Credit Exposure may does not in any event exceed the Revolving Credit Commitment of such Nonnon-Defaulting Lender as in effect at the time of such reallocation Lender’s Dollar Tranche Commitment; and (B) subject to Section 13.21, neither such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Letter of Credit Issuer, the Swingline Lender all or any other Lender may have against part of the Dollar Tranche LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Dollar Tranche Lenders in accordance with their respective Dollar Tranche Percentages but only to the extent (C) the sum of all non-Defaulting Lenders’ Dollar Tranche Revolving Credit Exposures plus such Defaulting Lender’s Dollar Tranche LC Tranche Exposure does not exceed the total of all non-Defaulting Dollar Tranche Lenders’ Dollar Tranche Commitments and (D) each non-Defaulting Lender’s Dollar Tranche Revolving Credit Exposure does not exceed such non-Defaulting Lender’s Dollar Tranche Commitment; and all or cause any part of the Multicurrency Tranche LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Multicurrency Tranche Lenders in accordance with their respective Multicurrency Tranche Percentages but only to be a Nonthe extent (E) the sum of all non-Defaulting Lenders’ Multicurrency Tranche Revolving Credit Exposures plus such Defaulting Lender’s Multicurrency Tranche LC Tranche Exposure does not exceed the total of all non-Defaulting Multicurrency Tranche Lenders’ Multicurrency Tranche Commitments and (F) each non-Defaulting Lender, ’s Multicurrency Tranche Revolving Credit Exposure does not exceed such non-Defaulting Lender’s Multicurrency Tranche Commitment;
(ii) to if the extent that all or any portion reallocation described in clause (the “unreallocated portion”i) of the Defaulting Lender’s Letter of Credit Exposure and Swingline Exposure above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(c)(i) above or otherwiseeffected, the Borrower Company shall within two one (1) Business Days Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of the Issuing Bank only the Borrowers’ obligations corresponding to such Defaulting Lender’s LC Exposure (after giving pro forma 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 pro forma effect to any partial reallocation pursuant to clause (i) above), in accordance with the procedures set forth in Section 3.8 2.06(j) for so long as such Letter of Credit LC Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes Company cash collateralizes any portion of such Defaulting Lender’s Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(c)clause (ii) above, the Borrower Borrowers shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Letter of Credit LC Exposure is Cash Collateralized, cash collateralized;
(iv) if the Letter of Credit LC Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(c)clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and Section 4.1(c2.12(b) shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay Applicable Percentages; and
(v) if all or any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to portion of such Defaulting Lender’s Letter of Credit Exposure during the period that such Defaulting Lender’s Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Letter of Credit LC Exposure is neither Cash Collateralized reallocated nor reallocated cash collateralized pursuant to the requirements of this Section 2.16(c)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the Letter of Credit Issuer Issuing Bank or any other Lender hereunder, all letter of credit fees payable under Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure shall be payable to the Letter of Credit Issuer Issuing Bank until and to the extent that such Letter of Credit LC Exposure is Cash Collateralized reallocated and/or reallocated;cash collateralized; and
(d) (i) so long as such Lender is a Defaulting Lender, the Letter of Credit Issuer will Swingline Lender shall not be required to issue fund any new Swingline Loan and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit or amend any outstanding Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereofCredit, unless the Letter of Credit Issuer it is reasonably satisfied that any the related exposure that would result from and the exposure to such Defaulting Lender is eliminated or fully Lender’s then outstanding LC Exposure will be 100% covered by the Revolving Credit Commitments of the Nonnon-Defaulting Lenders or and/or cash collateral will be provided by Cash Collateralization or a combination thereof the Company in accordance with the requirements Section 2.24(c), and participating interests in any such newly made Swingline Loan or any newly issued or increased Letter of Section 2.16(c) above or otherwise Credit shall be allocated among non-Defaulting Lenders in a manner reasonably consistent with Section 2.24(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to a Parent of any Lender shall occur following the Original Effective Date and for so long as such event shall continue or (ii) the Swingline Lender or the Issuing Bank has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless the Swingline Lender or the Issuing Bank, as the case may be, shall have entered into arrangements with the Company or such Lender, satisfactory to the Letter Swingline Lender or the Issuing Bank, as the case may be, to defease any risk to it in respect of Credit Issuer; andsuch Lender hereunder. In the event that the Administrative Agent, the Company, the Swingline Lender 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 Swingline Exposure and LC 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 Dollar Tranche Revolving Loans (other than Swingline Loans) and/or Multicurrency Tranche Revolving 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 Applicable Percentage.
Appears in 2 contracts
Sources: Credit Agreement (LKQ Corp), Amendment and Restatement Agreement (LKQ Corp)
Defaulting Lenders. (a) Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(ai) the standby fees payable pursuant to Section 4.6 shall cease to accrue on the unfunded unused portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a)Lender;
(bii) a Defaulting Lender shall not be included in determining whether, and the Commitment and proportion of and Outstanding Principal under any or all of the Revolving Credit Exposure Facilities of such Defaulting Lender shall not be included in determining whether whether, all Lenders or the Required Lenders or any other requisite Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 13.116.10); , provided that (i) any waiver, waiver or amendment or modification requiring the consent of all Lenders or each affected Lender which that (A) materially and adversely affects such Defaulting Lender differently than other affected Lenders Lenders, (B) increases the Commitment or extends the Maturity Date of such Defaulting Lender, or (C) relates to the matters set forth in Sections 16.10(a), 16.10(b)(iii) and 16.10(b)(ix) shall require the consent of such Defaulting Lender; and
(iii) for the avoidance of doubt, the Borrowers shall retain and reserve their other rights and remedies respecting each Defaulting Lender.
(b) If any Lender and fails to fund its Applicable Percentage of an Advance hereunder, then each other Lender shall fund a portion of such Lender’s unfunded Applicable Percentage of such Advance in an amount equal to its Applicable Percentage (ii) and, in calculating a Lender’s Applicable Percentage, the Commitment of any Defaulting Lender may not shall be increased or extended without the consent excluded) of such Lender;unfunded portion of such Advance; provided that, for certainty, no Lender shall be obligated by this Section 16.11 to make or provide an Advance which would result in the Outstanding Principal owing to it being in excess of its Commitment after taking into account any re-allocations pursuant to Section 16.11(d).
(c) if If the re-allocation described in subparagraph (b) above cannot be effected, or can only partially be effected, then (to the extent permitted by Applicable Law) such Defaulting Lender shall, within 1 Banking Day following notice by the Agent, provide Cash Collateral to the Agent for such Defaulting Lender’s Applicable Percentage of such Advance (after giving effect to any Swingline Exposure or Letter partial re-allocation pursuant to subparagraph (b) above) for so long as such Advance is outstanding.
(d) If any Letters of Credit Exposure exists are outstanding at the time that a Lender becomes a Defaulting Lender (such Defaulting Lender’s Applicable Percentage of the Equivalent Amount in Canadian Dollars of the Outstanding Principal of such Letters of Credit is the “Defaulting Lender Exposure”), then then:
(i) all or any part of such Letter of Credit to the extent the Defaulting Lender has not provided Cash Collateral for its Defaulting Lender Exposure of pursuant to Section 16.11(c) above, such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) re-allocated among the Nonnon-Defaulting Lenders pro rata under the Working Capital Facility for the purposes of Section 6.1 in accordance with their respective Revolving Credit Applicable Percentages thereunder (and, in calculating a Lender’s Applicable Percentage, the Commitment Percentageof any Defaulting Lender shall be excluded); provided but, for each non-Defaulting Lender, such re-allocation may only be effected if and to the extent that the sum of (A) each Nonany non-Defaulting Lender’s Revolving Credit Exposure may not in any event exceed Applicable Percentage of all outstanding Advances under the Revolving Credit Commitment of such Non-Defaulting Lender as in effect at the time of such reallocation and Working Capital Facility, plus (B) subject such non-Defaulting Lender’s rateable share (after giving effect to the reallocation contemplated herein) of the Defaulting Lender’s Exposure, does not exceed such Defaulting Lender’s Commitment under the Working Capital Facility;
(ii) if the re-allocation described in clause (i) above cannot be effected, or can only partially be effected, then the Borrower shall within one Banking Day following notice by a Fronting Lender prepay outstanding Letters of Credit (by the provision of Cash Collateral to the Agent) to the extent necessary to allow a full reallocation of the Defaulting Lender Exposure as aforesaid; and
(iii) if the Applicable Percentages of the non-Defaulting Lenders are re-allocated pursuant to this Section 16.11(d), then the LC Fees payable to the Lenders pursuant to Section 13.21, neither 4.5 shall be adjusted to give effect to such reallocation nor any payment by a Nonre-allocations in accordance with each such non-Defaulting Lender Lender’s Applicable Percentages and if the applicable Borrower provides Cash Collateral pursuant thereto will to clause (ii) above, then the applicable Borrower shall not be required to pay the LC Fees or fronting fees attributable to the Cash Collateralized exposure of such Letters of Credit. Subject to Section 16.17, no reallocation hereunder shall constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Letter of Credit Issuer, the Swingline Lender or any other Lender may have party hereunder against such a Defaulting Lender or cause such 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.
(e) If any Lender shall cease to be a Non-Defaulting Lender, (ii) to the extent that all or any portion (the “unreallocated portion”) then, upon becoming aware of the Defaulting Lender’s Letter of Credit Exposure and Swingline Exposure cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(c)(i) above or otherwisesame, the Borrower Agent shall within two Business Days following notice by notify the Administrative Agent (x) first, prepay such Swingline Exposure (after giving pro forma effect to any partial reallocation pursuant to clause (i) above) other Lenders and (y) second, Cash Collateralize such Defaulting Lender’s Letter of Credit Exposure (after giving pro forma effect to any partial reallocation pursuant to clause (i) above), in accordance with the procedures set forth written direction of the Agent) such Lender (which has ceased to be a Defaulting Lender) shall purchase, and the other Lenders shall on a pro rata basis sell and assign to such Lender, portions of such Loans equal in total to such Lender’s Applicable Percentage share thereof without regard to subsection (b) of this Section 3.8 16.11.
(f) Each Defaulting Lender hereby indemnifies the Principal Borrower for so long any losses, claims, costs, damages or liabilities (including reasonable out-of-pocket expenses and reasonable legal fees on a solicitor and his own client basis) incurred by the Principal Borrower as such Letter of Credit Exposure is outstanding, (iii) if the Borrower Cash Collateralizes any portion a result of such Defaulting Lender’s Letter of Credit Exposure pursuant Lender failing to comply with the requirements terms of this Section 2.16(c)Agreement, the Borrower shall not be including any failure to fund its portion of any Loans required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c) with respect to such Defaulting Lender’s 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 the requirements of this Section 2.16(c), then the fees payable to the Lenders pursuant to Section 4.1(c) shall be adjusted in accordance with such Non-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to such Defaulting Lender’s Letter of Credit Exposure during the period that such Defaulting Lender’s Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Letter of Credit Exposure is neither Cash Collateralized nor reallocated pursuant to the requirements of this Section 2.16(c), then, without prejudice to any rights or remedies of the Letter of Credit Issuer or any Lender made by it hereunder, all fees payable under Section 4.1(c) with respect to 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;
(d) (i) the Letter of Credit Issuer will not be required to issue any new Letter of Credit or amend any outstanding Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the Letter of Credit Issuer is reasonably satisfied that any exposure that would result from the exposure to such Defaulting Lender is eliminated or fully covered by the Revolving Credit Commitments of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof in accordance with the requirements of Section 2.16(c) above or otherwise in a manner reasonably satisfactory to the Letter of Credit Issuer; and.
Appears in 2 contracts
Sources: Credit Agreement (Kinder Morgan, Inc.), Credit Agreement (Kinder Morgan, Inc.)
Defaulting Lenders. 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 pursuant to Section 2.10(a) shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(athe extent, and during the period in which, such Lender is a Defaulting Lender (and the Borrower shall not be required to pay any such commitment fee that otherwise would have accrued and been required to have been paid to such Defaulting Lender to the extent and during the period in which such Lender is a Defaulting Lender);
(b) the Commitment of and the Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, two-thirds of the Lenders or the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment or waiver pursuant to Section 13.19.02, except for any amendment or waiver described in Section 9.02(b)(i), (ii), (iii) or (iv)); provided that (i) any waiver, amendment or modification requiring the consent of all Lenders, two-thirds of the Lenders or each affected Lender which affects such Defaulting Lender differently than other Lenders or affected Lenders (as applicable) shall require the consent of such Defaulting Lender and (ii) the Commitment of any Defaulting Lender may not be increased or extended without the consent of such Lender;.
(c) if any Swingline Exposure or Letter of Credit LC Exposure exists at the time a Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Letter of Credit LC Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata in accordance with their respective Revolving Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Credit Commitment Percentage; provided that Exposures plus such Defaulting Lender’s LC Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments, (Ay) each Nonno non-Defaulting Lender’s Revolving Credit Exposure may not in any event will exceed the Revolving Credit Commitment of such Non-Defaulting Lender as in effect at the time of such reallocation Lender’s Commitment, and (Bz) subject to the conditions set forth in Section 13.21, neither 4.02 are satisfied at such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim time (and unless the BorrowerBorrower has notified the Administrative Agent at such time, the Administrative Agent, the Letter of Credit Issuer, the Swingline Lender or any other Lender may Borrower shall be deemed to have against represented and warranted that such Defaulting Lender or cause conditions are satisfied at such Defaulting Lender to be a Non-Defaulting Lender, time);
(ii) to if the extent that all or any portion reallocation described in clause (the “unreallocated portion”i) of the Defaulting Lender’s Letter of Credit Exposure and Swingline Exposure above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(c)(i) above or otherwiseeffected, the Borrower shall shall, without prejudice to any right or remedy available to it hereunder or under law, within two three Business Days following notice by the Administrative Agent (x) firstAgent, prepay Cash Collateralize such Swingline Defaulting Lender’s LC Exposure (after giving pro forma 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 pro forma effect to any partial reallocation pursuant to clause (i) above), in accordance with the procedures set forth in Section 3.8 2.04(k) for so long as such Letter of Credit LC Exposure is outstanding, (iii) if the Borrower Cash Collateralizes any portion of such Defaulting Lender’s Letter of Credit Exposure pursuant to the requirements of this Section 2.16(c), the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c) with respect to such Defaulting Lender’s 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 the requirements of this Section 2.16(c), then the fees payable to the Lenders pursuant to Section 4.1(c) shall be adjusted in accordance with such Non-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to such Defaulting Lender’s Letter of Credit Exposure during the period that such Defaulting Lender’s Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Letter of Credit Exposure is neither Cash Collateralized nor reallocated pursuant to the requirements of this Section 2.16(c), then, without prejudice to any rights or remedies of the Letter of Credit Issuer or any Lender hereunder, all fees payable under Section 4.1(c) with respect to 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;
(d) (i) the Letter of Credit Issuer will not be required to issue any new Letter of Credit or amend any outstanding Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the Letter of Credit Issuer is reasonably satisfied that any exposure that would result from the exposure to such Defaulting Lender is eliminated or fully covered by the Revolving Credit Commitments of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof in accordance with the requirements of Section 2.16(c) above or otherwise in a manner reasonably satisfactory to the Letter of Credit Issuer; and
Appears in 2 contracts
Sources: Senior Secured Revolving Credit Agreement (Oaktree Specialty Lending Corp), Senior Secured Revolving Credit Agreement (Oaktree Specialty Lending Corp)
Defaulting Lenders. 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) such Defaulting Lender will not be entitled to any fees shall cease accruing during such period pursuant to accrue Section 2.11(a) or 2.11(b) (without prejudice to the rights of the Lenders other than Defaulting Lenders in respect of such fees and, to the extent any LC Exposure or Swingline Exposure is reallocated to Non-Defaulting Lenders as set forth in Section 2.22(d)(i), any such fees will be paid to the applicable Non-Defaulting Lenders to the extent of such reallocation);
(b) such Lender will not, to the fullest extent permitted by applicable law, be entitled to vote in respect of amendments and waivers hereunder and the Commitment and the outstanding Loans or other extensions of credit of such Lender hereunder will not be taken into account in determining whether the Required Lenders or all of the Lenders, as required, have approved any such amendment or waiver (and the definition of “Required Lenders” will automatically be deemed modified accordingly for the duration of such period); provided that any such amendment or waiver that would (i) increase or extend the term of the Commitment of such Defaulting Lender, (ii) extend the date fixed for the payment of principal or interest owing to such Defaulting Lender hereunder, (iii) reduce the principal amount of any obligation owing to such Defaulting Lender, (iv) reduce the amount of or the rate of interest on any amount owing to such Defaulting Lender or of any fee payable to such Defaulting Lender hereunder or (v) alter the unfunded portion terms of this proviso, will continue to require the consent of such Defaulting Lender;
(c) the Borrower may irrevocably terminate the unused amount of the Commitment of such Defaulting Lender pursuant upon not less than three Business Days’ prior notice to Section 4.1(athe Administrative Agent (which will promptly notify the Lenders thereof);
(b) . Such termination shall be effective, with respect to such Defaulting Lender’s then existing unused Commitments, on the date set forth in such notice and, with respect to any unused Commitment thereafter arising, on the later of the date set forth in such notice and the Revolving Credit Exposure date on which such unused Commitment first arises (and no commitment fee will be payable in respect of such unused Commitment terminated on the date it arises). Upon termination of such Defaulting Lender’s unused Commitments under this Section 2.22(b), the Borrower shall pay or cause to be paid all accrued commitment fees payable to, and all other amounts owing to, such Defaulting Lender under this Agreement. Upon such payment, the obligations of such Defaulting Lender hereunder with respect to such terminated Commitments shall not be included in determining whether all Lenders or the Required Lenders or any other requisite Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 13.1)released and discharged; provided provided, however, that (i) 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 Lender’s rights and obligations provided in Section 9.05 with respect to such terminated Commitments shall require the consent of survive such Defaulting Lender release and (ii) the Commitment of any Defaulting Lender may not be increased or extended without the consent of discharge as to matters occurring prior to such Lenderdate;
(cd) if any Swingline LC Exposure or Letter of Credit Swingline Exposure exists at the time a Lender becomes is a Defaulting Lender, then :
(i) all such LC Exposure or any part of such Letter of Credit Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the proviso below, will automatically be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Non-Defaulting Lenders on a pro rata basis in accordance with their respective Revolving Credit Commitments (without giving effect to the Commitment Percentageof such Defaulting Lender); provided that (A) each no Non-Defaulting Lender’s Revolving Credit Exposure may not in any event exceed the Revolving Credit its Commitment of such Non-Defaulting Lender as in effect at the time of such reallocation and (B) subject to Section 13.21, neither such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim the Borrowerany Loan Party, the Administrative Agent, the Letter of Credit Issuerany Issuing Bank, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, ; and
(ii) to the extent that all or any portion (the “unreallocated portion”) of the Defaulting Lender’s Letter of Credit LC Exposure and or Swingline Exposure cannot, or can only partially, not be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(c)(iclause (i) above or otherwise, the Borrower shall within two will, not later than three Business Days following notice after demand therefor by the Administrative Agent (xat the direction of any Issuing Bank or the Swingline Lender), (A) firstCash Collateralize in full its obligations to the Issuing Banks in respect of the unreallocated portion of such LC Exposure, (B) prepay in full its obligations to the Swingline Lender in respect of the unreallocated portion of such Swingline Exposure or (after giving pro forma effect C) make other arrangements reasonably satisfactory to the Administrative Agent and to the Issuing Banks and the Swingline Lender in their sole discretion to protect them against the risk of non-payment by such Defaulting Lender; and
(iii) to the extent the unreallocated portion of any partial reallocation LC Exposure is Cash Collateralized pursuant to clause (ii) above, such Cash Collateral will be applied to reimburse the relevant Issuing Bank for the portion of any LC Disbursement to which such unreallocated portion relates and, to the extent the remaining portion of such LC Disbursement shall not be reimbursed by the Borrower in accordance with Section 2.05(f), the Non-Defaulting Lenders will be required pursuant to Section 2.05(f) to fund participations therein in accordance with clause (i) above;
(e) and (y) secondno Issuing Bank shall be required to issue, Cash Collateralize such Defaulting Lender’s amend or increase any Letter of Credit Exposure (after giving pro forma effect to any partial reallocation pursuant to clause (i) above)Credit, in accordance with and the procedures set forth in Section 3.8 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 the requirements of this Section 2.16(c), the Borrower Swingline Lender shall not be required to pay fund any fees Swingline Loan, unless such Issuing Bank or the Swingline Lender is satisfied that any LC Exposure or Swingline Exposure that would result therefrom is fully covered or eliminated by any combination reasonably satisfactory to such Issuing Bank or the Swingline Lender, as applicable, of the arrangements set forth in clauses (d)(i) and (d)(ii) above;
(f) in furtherance of the foregoing, if any Lender becomes, and during the period it remains, a Defaulting Lender, the Swingline Lender is hereby authorized by the Borrower (which authorization is irrevocable and coupled with an interest) to give, in its discretion, through the Administrative Agent, Borrowing Requests pursuant to Section 2.03 in such amounts and in such times as may be required to repay an outstanding Swingline Loan; and
(g) any amount paid by the Borrower for the account of such Defaulting Lender pursuant in its capacity as a Lender under this Agreement (whether on account of principal, interest, fees, indemnity payments or other amounts) will be applied to Section 4.1(c) with respect the payment of all amounts then due and payable by such Defaulting Lender under this Agreement until such amounts are paid in full and then will be paid to such Defaulting Lender’s Letter . The application of payments as described in the preceding sentence shall not result in a Default, and a Defaulting Lender may not charge any overdue or penalty interest on any amount owed to it that is not paid as a result of such application. If the Borrower, the Administrative Agent, each Issuing Bank and the Swingline Lender agree in writing in their discretion that a Lender that is a Defaulting Lender should no longer be deemed to be a Defaulting Lender, the Administrative Agent will so notify the parties hereto, and as of the effective date specified in such notice and subject to any conditions set forth therein, such Lender will, to the extent applicable, purchase at par such portion of the outstanding Loans or participations in Letters of Credit Exposure during and Swingline Loans of the period other Lenders or make such Defaulting Lender’s Letter of Credit Exposure is Cash Collateralized, (iv) if other adjustments as the Letter of Administrative Agent may determine to be necessary to cause the Credit Exposure of the Lenders to be on a pro rata basis in accordance with their respective Commitments, and such Lender will cease to be a Defaulting Lender and will become a Non-Defaulting Lenders is reallocated pursuant Lender (and the Credit Exposure of each Lender will automatically be adjusted on a prospective basis to reflect the foregoing); provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while such ▇▇▇▇▇▇ was a Defaulting Lender; provided further that except to the requirements of this Section 2.16(c)extent otherwise expressly agreed by the affected parties, then the fees payable no change hereunder from a Defaulting Lender to the Lenders pursuant to Section 4.1(c) shall be adjusted in accordance with such a Non-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay Lender will constitute a waiver or release of any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to claim of any party hereunder arising from such ▇▇▇▇▇▇’s having been a Defaulting Lender’s Letter . The parties agree that this Section 2.22 does not violate any of Credit Exposure during the period that such Defaulting Lender’s Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Letter of Credit Exposure is neither Cash Collateralized nor reallocated pursuant to the requirements pro rata provisions of this Section 2.16(c), then, without prejudice to any rights or remedies of the Letter of Credit Issuer or any Lender hereunder, all fees payable under Section 4.1(c) with respect to 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;
(d) (i) the Letter of Credit Issuer will not be required to issue any new Letter of Credit or amend any outstanding Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the Letter of Credit Issuer is reasonably satisfied that any exposure that would result from the exposure to such Defaulting Lender is eliminated or fully covered by the Revolving Credit Commitments of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof in accordance with the requirements of Section 2.16(c) above or otherwise in a manner reasonably satisfactory to the Letter of Credit Issuer; andAgreement.
Appears in 2 contracts
Sources: Credit Agreement (Blackstone Inc.), Credit Agreement (Blackstone Inc.)
Defaulting Lenders. 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 Commitment of such Defaulting Lender pursuant to Section 4.1(a);
(b) the Commitment of The Commitments and the Revolving Credit Exposure Loans of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders or any other requisite Lenders have taken or may take any action hereunder (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 13.19.02); provided that this Section 2.16(a) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification effecting the reduction or excuse of principal amount of, or interest or fees payable on, such Defaulting Lender’s Loans or the postponement of the scheduled date of payment of such principal amount, interest or fees to such Defaulting Lender.
(ib) any waiver, amendment or modification requiring the consent of all Lenders or each affected The rights and remedies against a Defaulting Lender which affects under this Agreement are in addition to other rights and remedies that Borrower may have against such Defaulting Lender differently than other affected Lenders shall require with respect to any funding default and that the consent of Administrative Agent or any Lender may have against such Defaulting Lender with respect to any funding default. In the event that the Administrative Agent and (ii) the Commitment of any Borrower each agrees that a Defaulting Lender may not has adequately remedied all matters that caused such Lender to be increased or extended without the consent of such Lender;
(c) if any Swingline Exposure or Letter of Credit Exposure exists at the time a Lender becomes a Defaulting Lender, then (i) all or any part of such Letter of Credit Exposure of such Lender will cease to be a Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the proviso below, automatically will be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Non-Defaulting Lenders pro rata in accordance with their respective Revolving Credit Commitment Percentage; provided that (A) each Non-Defaulting Lender’s Revolving Credit Exposure may not in any event exceed ; provided that no adjustments will be made retroactively with respect to payments made by or on behalf of the Revolving Credit Commitment of such Borrower while that Lender was a Defaulting Lender; provided that, except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Non-Defaulting Lender as in effect at the time of such reallocation and (B) subject to Section 13.21, neither such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Letter of Credit Issuer, the Swingline Lender or any other Lender may have against party hereunder arising from such Defaulting Lender or cause such Defaulting Lender to be Lender’s having been a Non-Defaulting Lender, (ii) to the extent that all or any portion (the “unreallocated portion”) of the Defaulting Lender’s Letter of Credit Exposure and Swingline Exposure cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(c)(i) above or otherwise, the Borrower shall within two Business Days following notice by the Administrative Agent (x) first, prepay such Swingline Exposure (after giving pro forma 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 pro forma effect to any partial reallocation pursuant to clause (i) above), in accordance with the procedures set forth in Section 3.8 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 the requirements of this Section 2.16(c), the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c) with respect to such Defaulting Lender’s 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 the requirements of this Section 2.16(c), then the fees payable to the Lenders pursuant to Section 4.1(c) shall be adjusted in accordance with such Non-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to such Defaulting Lender’s Letter of Credit Exposure during the period that such Defaulting Lender’s Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Letter of Credit Exposure is neither Cash Collateralized nor reallocated pursuant to the requirements of this Section 2.16(c), then, without prejudice to any rights or remedies of the Letter of Credit Issuer or any Lender hereunder, all fees payable under Section 4.1(c) with respect to 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;
(d) (i) the Letter of Credit Issuer will not be required to issue any new Letter of Credit or amend any outstanding Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the Letter of Credit Issuer is reasonably satisfied that any exposure that would result from the exposure to such Defaulting Lender is eliminated or fully covered by the Revolving Credit Commitments of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof in accordance with the requirements of Section 2.16(c) above or otherwise in a manner reasonably satisfactory to the Letter of Credit Issuer; and.
Appears in 2 contracts
Sources: Credit Agreement (RR Donnelley & Sons Co), Credit Agreement (RR Donnelley & Sons Co)
Defaulting Lenders. 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 pursuant to Section 2.10(a) shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(athe extent, and during the period in which, such Lender is a Defaulting Lender (and the Borrower shall not be required to pay any such commitment fee that otherwise would have accrued and been required to have been paid to such Defaulting Lender to the extent and during the period in which such Lender is a Defaulting Lender);
(b) the Commitment of and the Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, two-thirds of the Lenders, two-thirds of the Lenders of a Class, the Required Lenders or the Required Lenders or any other requisite Lenders of a Class have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment or waiver pursuant to Section 13.19.02, except for any amendment or waiver described in Section 9.02(b)(i), (ii), (iii) or (iv)); provided that (i) any waiver, amendment or modification requiring the consent of all Lenders, two-thirds of the Lenders or each affected Lender which affects such Defaulting Lender differently than other Lenders or affected Lenders (as applicable) shall require the consent of such Defaulting Lender and (ii) the Commitment of any Defaulting Lender may not be increased or extended without the consent of such Lender;.
(c) if any Swingline Exposure or Letter of Credit LC Exposure exists at the time a Multicurrency Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Letter of Credit LC Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Multicurrency Lenders pro rata in accordance with their respective Revolving Applicable Multicurrency Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Multicurrency Credit Commitment Percentage; provided that Exposures plus such Defaulting Lender’s LC Exposure does not exceed the total of all non-Defaulting Lenders’ Multicurrency Commitments, (Ay) each Nonno non-Defaulting Lender’s Revolving Multicurrency Credit Exposure may not in any event will exceed the Revolving Credit Commitment of such Non-Defaulting Lender as in effect at the time of such reallocation Lender’s Multicurrency Commitment, and (Bz) subject to the conditions set forth in Section 13.21, neither 4.02 are satisfied at such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim time (and unless the BorrowerBorrower has notified the Administrative Agent at such time, the Administrative Agent, the Letter of Credit Issuer, the Swingline Lender or any other Lender may Borrower shall be deemed to have against represented and warranted that such Defaulting Lender or cause conditions are satisfied at such Defaulting Lender to be a Non-Defaulting Lender, time);
(ii) to if the extent that all or any portion reallocation described in clause (the “unreallocated portion”i) of the Defaulting Lender’s Letter of Credit Exposure and Swingline Exposure above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(c)(i) above or otherwiseeffected, the Borrower shall shall, without prejudice to any right or remedy available to it hereunder or under law, within two three Business Days following notice by the Administrative Agent (x) firstAgent, prepay cash collateralize such Swingline Defaulting Lender’s LC Exposure (after giving pro forma 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 pro forma effect to any partial reallocation pursuant to clause (i) above), in accordance with the procedures set forth in Section 3.8 2.04(k) for so long as such Letter of Credit LC Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(c)clause (ii) above, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c2.10(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Letter of Credit LC Exposure is Cash Collateralized, cash collateralized;
(iv) if the Letter of Credit LC Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(c)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(c2.10(a) and Section 2.10(b) shall be adjusted in accordance with such Nonnon-Defaulting Multicurrency Lenders’ Revolving Credit Commitment Applicable Multicurrency Percentages and the Borrower shall not be required to pay any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect in effect after giving effect to such Defaulting Lender’s Letter of Credit Exposure during the period that such Defaulting Lender’s Letter of Credit Exposure is reallocated, or reallocation;
(v) if any Defaulting Lender’s Letter of Credit LC Exposure is neither Cash Collateralized cash collateralized nor reallocated pursuant to the requirements of this Section 2.16(c2.17(c), then, without prejudice to any rights or remedies of the Letter of Credit Issuer Issuing Bank or any 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 LC Exposure) and letter of credit fees payable under Section 4.1(c2.10(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure shall be payable to the Letter of Credit Issuer Issuing Bank until such Letter of Credit LC Exposure is Cash Collateralized cash collateralized and/or reallocated;; and
(vi) subject to Section 9.16, no reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Lender having become a Defaulting Lender, including any claim of a non-Defaulting Lender as a result of such non-Defaulting Lender’s increased exposure following such reallocation.
(d) (i) so long as any Multicurrency Lender is a Defaulting Lender, the Letter of Credit Issuer will Issuing Bank shall not be required to issue issue, amend or increase any new Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Multicurrency Commitments of the non-Defaulting Multicurrency Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 2.17(c), and participating interests in any such newly issued or increased Letter of Credit or amend any outstanding Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the Letter of Credit Issuer is reasonably satisfied that any exposure that would result from the exposure to such Defaulting Lender is eliminated or fully covered by the Revolving Credit Commitments of the Nonshall be allocated among non-Defaulting Lenders or by Cash Collateralization or in a combination thereof manner consistent with Section 2.17(c)(i) (and Defaulting Lenders shall not participate therein). In the event that the Administrative Agent and the Borrower agree in writing that a Defaulting Lender that is a Dollar Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then, on the date of such agreement, such Lender shall purchase at par such of the Loans made to each Borrower of the other Lenders as the Administrative Agent shall determine may be necessary in order for the Lenders to hold such Loans in accordance with their Applicable Dollar Percentage in effect immediately after giving effect to such agreement. In the requirements event that the Administrative Agent, the Borrower and the Issuing Bank each agrees in writing that a Defaulting Lender that is a Multicurrency Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then, on the date of such agreement, such Lender shall no longer be deemed a Defaulting Lender, the Borrower shall no longer be required to cash collateralize any portion of such Lender’s LC Exposure cash collateralized pursuant to Section 2.16(c2.17(c)(ii) above or otherwise above, the LC Exposure of the Multicurrency Lenders shall be readjusted to reflect the inclusion of such Lender’s Multicurrency Commitment and such Lender shall purchase at par the portion of the Loans of the other Multicurrency Lenders as the Administrative Agent shall determine may be necessary in a manner reasonably satisfactory order for such Lender to the Letter of Credit Issuer; andhold such Loans in accordance with its Applicable Multicurrency Percentage in effect immediately after giving effect to such agreement.
Appears in 2 contracts
Sources: Senior Secured Revolving Credit Agreement (Barings Capital Investment Corp), Senior Secured Revolving Credit Agreement (Barings Capital Investment Corp)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Committed Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Committed Lender is a Defaulting Lender:
(ai) fees Unused Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a);2.04 and (ii) such Defaulting Lender shall not be entitled to receive any L/C Fees pursuant to Section 2.17(c) otherwise payable to the account of a Defaulting Lender with respect to any Letter of Credit, but instead, the Borrower shall pay to the non-Defaulting Lenders the amount of such L/C Fees in accordance with the upward adjustments in their respective Pro Rata Shares allocable to such Letter of Credit pursuant to clause (b) below, with the balance of such fee, if any, payable to the applicable Issuing Lender for its own account.
(b) During any period in which there is a Defaulting Lender, for purposes of computing the amount of the obligation of each non-Defaulting Lender to acquire, refinance or fund participations in Letters of Credit pursuant to Section 2.17, the “Pro Rata Share” of each non-Defaulting Lender shall be computed without giving effect to the Commitment of and that Defaulting Lender; provided that each such reallocation shall be given effect only if the Revolving aggregate obligation of each non-Defaulting Lender to acquire, refinance or fund participations in Letters of Credit shall not exceed the positive difference, if any, of (A) the Commitment of that non-Defaulting Lender minus (B) the Credit Exposure of that non-Defaulting Lender.
(c) Promptly on demand by any Issuing Lender or the Administrative Agent from time to time, the Borrower shall deliver to such Issuing Lender cash collateral in an amount sufficient to cover all Fronting Exposure with respect to such Issuing Lender (after giving effect to clause (b) above) on terms reasonably satisfactory to the Administrative Agent and such Issuing Lender (and such cash collateral shall be in Dollars). Any such cash collateral shall be deposited in a separate account with the applicable Issuing Lender, subject to the exclusive dominion and control of such Issuing Lender, as collateral (solely for the benefit of such Issuing Lender) for the payment and performance of each Defaulting Lender’s Pro Rata Share of outstanding L/C Obligations with respect to such Issuing Lender. Amounts in such account shall be applied by the Administrative Agent to reimburse the applicable Issuing Lender immediately for each Defaulting Lender’s Pro Rata Share of any drawing under any Letter of Credit which has not otherwise been reimbursed by the Borrower or such Defaulting Lender.
(d) Neither the Commitment nor the Loans of such Defaulting Lender shall be included in determining whether all Lenders, a majority of the Lenders or the Required Managing Agents have taken or may take any action hereunder and the Managing Agent of the Lender Group which includes such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders or any other requisite Lenders Managing Agents have taken or may take have taken any action hereunder (including including, in each case, any consent to any amendment or waiver pursuant to Section 13.110.01); provided provided, that (i) any waiver, amendment or modification requiring the consent of all Lenders or Managing Agents or each affected Lender or Managing Agent, as applicable, which affects such Defaulting Lender or the related Managing Agent differently than other affected Lenders or Managing Agents shall require the consent of such Defaulting Lender and (ii) or the Commitment of any Defaulting Lender may not be increased or extended without the consent of such Lenderrelated Managing Agent, as applicable;
(ce) if any Swingline Exposure or Letter of Credit Exposure exists at In the time event that the Administrative Agent determines that a Defaulting Lender becomes has adequately remedied all matters that caused such Committed Lender to be a Defaulting Lender, then (i) all or any part the Pro Rata Shares, the Lender Group Limits and Lender Group Percentages shall be readjusted to reflect the inclusion of such Letter Committed Lender’s Commitment and on such date such Committed Lender shall purchase at par such of the Loans of the other Lenders as the Administrative Agent and the Managing Agents shall determine may be necessary in order for such Committed Lender to hold such Loans and funded and unfunded participations in Letters of Credit Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the proviso below, automatically be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Non-Defaulting Lenders pro rata in accordance with their respective Revolving Credit Commitment Percentage; provided that (A) each Non-Defaulting its Pro Rata Share and for such Committed Lender’s Revolving Credit Exposure may not in any event exceed the Revolving Credit Commitment of Lender Group to hold such Non-Defaulting Lender as in effect at the time of such reallocation and (B) subject to Section 13.21, neither such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Letter of Credit Issuer, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, (ii) to the extent that all or any portion (the “unreallocated portion”) of the Defaulting Lender’s Letter of Credit Exposure and Swingline Exposure cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(c)(i) above or otherwise, the Borrower shall within two Business Days following notice by the Administrative Agent (x) first, prepay such Swingline Exposure (after giving pro forma 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 pro forma effect to any partial reallocation pursuant to clause (i) above), Loans in accordance with the procedures set forth in Section 3.8 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 the requirements of this Section 2.16(c), the Borrower shall not be required to pay any fees to such Defaulting its Lender pursuant to Section 4.1(c) with respect to such Defaulting Lender’s 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 the requirements of this Section 2.16(c), then the fees payable to the Lenders pursuant to Section 4.1(c) shall be adjusted in accordance with such Non-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to such Defaulting Lender’s Letter of Credit Exposure during the period that such Defaulting Lender’s Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Letter of Credit Exposure is neither Cash Collateralized nor reallocated pursuant to the requirements of this Section 2.16(c), then, without prejudice to any rights or remedies of the Letter of Credit Issuer or any Lender hereunder, all fees payable under Section 4.1(c) with respect to 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;
(d) (i) the Letter of Credit Issuer will not be required to issue any new Letter of Credit or amend any outstanding Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the Letter of Credit Issuer is reasonably satisfied that any exposure that would result from the exposure to such Defaulting Lender is eliminated or fully covered by the Revolving Credit Commitments of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof in accordance with the requirements of Section 2.16(c) above or otherwise in a manner reasonably satisfactory to the Letter of Credit IssuerGroup Percentage; and
Appears in 2 contracts
Sources: Loan and Servicing Agreement (Newell Brands Inc.), Loan and Servicing Agreement (Newell Brands Inc)
Defaulting Lenders. 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 Commitment of such Defaulting Lender pursuant to Section 4.1(a)2.4;
(b) the Commitment and Revolving Extensions of and the Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders or any other requisite Majority Lenders have taken or may take any action hereunder (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 13.111.14); provided provided, that (i) 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 (ii) the Lender’s Commitment of any Defaulting Lender may not be increased or extended without its consent and (ii) the consent principal amount of, or interest or fees payable on, Loans or L/C Obligations 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) for purposes of any requested borrowing where a Defaulting Lender fails to fund its percentage of such borrowing and the Administrative Agent funds the defaulted portion, the borrowing request shall automatically be deemed to be the amount requested plus the amount that was to be funded by the Defaulting Lender (grossed up for the Defaulting Lender’s share of such additional borrowing) so that the amount requested shall be allocated among the remaining Lenders, but only to the extent the sum of all non-Defaulting Lenders’ Revolving Extensions of Credit plus such Defaulting Lender’s Swingline Participation Amount and Revolving Percentage of the L/C Obligations does not exceed the total of all non-Defaulting Lenders’ Commitments;
(d) if any Swingline Exposure Loans are outstanding or Letter of Credit Exposure exists L/C Obligations exist at the time a such Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Letter Lender’s Swingline Participation Amount or Revolving Percentage of Credit Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the proviso below, automatically L/C Obligations shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata in accordance with their respective Swingline Participation Amount or Revolving Percentage, as applicable, but only to the extent the sum of all non-Defaulting Lenders’ Revolving Extensions of Credit Commitment Percentage; provided that (A) each Non-plus such Defaulting Lender’s Swingline Participation Amount and Revolving Credit Exposure may Percentage of the L/C Obligations does not in any event exceed the Revolving Credit Commitment total of such Nonall non-Defaulting Lender as in effect at the time of such reallocation and (B) subject to Section 13.21, neither such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Letter of Credit Issuer, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, Lenders’ Commitments;
(ii) to if the extent that all or any portion reallocation described in clause (the “unreallocated portion”i) of the Defaulting Lender’s Letter of Credit Exposure and Swingline Exposure above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(c)(i) above or otherwiseeffected, the Borrower shall within two one Business Days Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of the Issuing L/C Lender only the Borrower’s obligations corresponding to such Defaulting Lender’s Revolving Percentage of the L/C Obligations (after giving pro forma 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 pro forma effect to any partial reallocation pursuant to clause (i) above), in accordance with the procedures set forth in Section 3.8 9.1 for so long as such Letter of Credit Exposure is L/C Obligations are outstanding, ;
(iii) if the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s Letter Revolving Percentage of Credit Exposure the L/C Obligations pursuant to the requirements of this Section 2.16(c)clause (ii) above, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c) 3.3 with respect to such Defaulting Lender’s Letter Revolving Percentage of Credit Exposure the L/C Obligations during the period such Defaulting Lender’s Letter Revolving Percentage of Credit Exposure the L/C Obligations is Cash Collateralized, cash collateralized;
(iv) if the Letter of Credit Exposure Revolving Percentage of the NonL/C Obligations of the non-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(c)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(c) Sections 2.4 and 3.3 shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay Percentages; and
(v) if all or any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to portion of such Defaulting Lender’s Letter Revolving Percentage of Credit Exposure during the period that such Defaulting Lender’s Letter of Credit Exposure L/C Obligations is reallocated, neither reallocated nor cash collateralized pursuant to clause (i) or (vii) if any Defaulting Lender’s Letter of Credit Exposure is neither Cash Collateralized nor reallocated pursuant to the requirements of this Section 2.16(c)above, then, without prejudice to any rights or remedies of the Letter of Credit Issuer Issuing L/C Lender or any other Lender hereunder, all Commitment Fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such Revolving Percentage of the L/C Obligations) and all letter of credit fees payable under Section 4.1(c) 3.3 with respect to such Defaulting Lender’s Letter of Credit Exposure Lender shall be payable to the Letter Issuing L/C Lender until and to the extent that such Defaulting Lender’s Revolving Percentage of Credit Issuer until such Letter of Credit Exposure the L/C Obligations is Cash Collateralized reallocated and/or reallocated;cash collateralized; and
(de) (i) so long as such Lender is a Defaulting Lender, the Letter of Credit Issuer will Swingline Lender shall not be required to issue fund any new Swingline Loan and the Issuing L/C 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 2.23(d), and participating interests in any newly made Swingline Loan or any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.23(d)(i) (and such Defaulting Lender shall 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) the Swingline Lender or the Issuing L/C Lender has definitive evidence that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit (unless as a result of a good faith dispute), the Swingline Lender shall not be required to fund any Swingline Loan and the Issuing L/C Lender shall not be required to issue, amend or increase any outstanding Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereofCredit, unless the Letter Swingline Lender or the Issuing L/C 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 L/C Lender, as the case may be, to defease any risk to it in respect of Credit Issuer is reasonably satisfied that any exposure that would result from such Lender hereunder, unless the exposure to such Defaulting Lender is eliminated or fully covered by the Revolving Credit Commitments of the Nonnon-Defaulting Lenders are, at all times while any of the circumstances described in clause (i) or by Cash Collateralization (ii) above are in existence, sufficient to cover the Swingline Loans or Letters of Credit. In the event that the Administrative Agent, the Borrower, the Swingline Lender and the Issuing L/C Lender each agrees that a combination thereof Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Commitment and L/C Obligations 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 the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with the requirements of Section 2.16(c) above or otherwise in its Revolving Percentage, and shall pay all costs resulting from its becoming a manner reasonably satisfactory to the Letter of Credit Issuer; andDefaulting Lender.
Appears in 2 contracts
Sources: Credit Agreement (Centurylink, Inc), Credit Agreement (Centurylink, Inc)
Defaulting Lenders. 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 Commitment Commitments of such Defaulting Lender pursuant to Section 4.1(a)5.3;
(b) the Commitment of and the Revolving Credit Exposure Commitment of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Requisite Lenders or any other requisite the Requisite Facility Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 13.114.7, except that the Defaulting Lender’s consent shall be required in connection with any increase or extension in such Defaulting Lender’s Revolving Credit Commitment or Term Commitments pursuant to Section 14.7(b)(ii); , any amendment pursuant to Section 14.7(b)(iii) or (iv) affecting its Loans or pursuant to Section 14.7(b)(iv) with respect to postponing the Revolving Credit Termination Date or the Term Maturity Date only), provided that (i) 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 (ii) the Commitment of any Defaulting Lender may not be increased or extended without the consent of such Lender;
(c) if any Swingline Exposure Loans or Letter Letters of Credit Exposure exists exist at the time a Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Letter liability with respect to Swingline Loans and Letters of Credit Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata in accordance with their respective Pro Rata Share for the Revolving Credit Commitment Percentage; provided that Facility but only to the extent (Ax) each Nonthe sum of all non-Defaulting Lenders’ Revolving Credit Obligations plus such Defaulting Lender’s Pro Rata Share of Swingline Loans and Letters of Credit does not exceed the total of all non-Defaulting Lenders’ Revolving Credit Exposure may not Commitments (it being understood that under no circumstance shall any Lender at any time be liable for any amounts in any event exceed the excess of its Revolving Credit Commitment of such Non-Defaulting Lender as in effect at the time of such reallocation Commitment), and (By) subject to the conditions set forth in Section 13.21, neither 6.2(a) and Section 6.2(b) are satisfied at such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Letter of Credit Issuer, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, time; and
(ii) to if the extent that all or any portion reallocation described in clause (the “unreallocated portion”i) of the Defaulting Lender’s Letter of Credit Exposure and Swingline Exposure above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(c)(i) above or otherwiseeffected, the Borrower shall within two five (5) Business Days following notice by the Administrative Agent (x) first, prepay such Defaulting Lender’s Pro Rata Share of the Swingline Exposure Loans and (y) second, cash collateralize such Defaulting Lender’s Pro Rata Share of Letters of Credit (after giving pro forma 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 pro forma effect to any partial reallocation pursuant to clause (i) above), in accordance with the procedures set forth in Section 3.8 3.4 for so long as such Letter Letters of Credit Exposure is are outstanding, ;
(iii) if the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s Letter Pro Rata Share of the Letters of Credit Exposure pursuant to the requirements of this Section 2.16(c14.25(c), the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c) with respect to such Defaulting Lender’s Letter Pro Rata Share of the Letters of Credit Exposure during the period such Defaulting Lender’s Letter Pro Rata Share of the Letters of Credit Exposure is Cash Collateralized, cash collateralized;
(iv) if the Letter of Credit Exposure Pro Rata Share of the Nonnon-Defaulting Lenders with respect to Letters of Credit is reallocated pursuant to the requirements of this Section 2.16(c14.25(c), then the fees payable to the Lenders pursuant to Section 4.1(c) this Agreement shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to such Defaulting Lender’s Letter of Credit Exposure during the period that such Defaulting Lender’s Letter of Credit Exposure is reallocated, or Pro Rata Shares; or
(v) if any Defaulting Lender’s Letter Pro Rata Share of Letters of Credit Exposure is neither Cash Collateralized cash collateralized nor reallocated pursuant to the requirements of this Section 2.16(c14.25(c), then, without prejudice to any rights or remedies of the Letter of Credit Issuer Issuing Bank or any Lender hereunder, all fees Facility Fees that otherwise would have been payable under Section 4.1(c) to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Letter Revolving Credit Commitment that was utilized by such Pro Rata Share of Credit Exposure Letters of Credit) and shall be payable to the Letter Issuing Bank until such Pro Rata Share of Letters of Credit Issuer until such Letter of Credit Exposure is Cash Collateralized cash collateralized and/or reallocated;; and
(d) (i) so long as any Lender is a Defaulting Lender, the Letter of Credit Issuer will Swingline Lender shall not be required to issue fund any new Swingline Loan and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit or amend any outstanding Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereofCredit, unless the Letter of Credit Issuer it is reasonably satisfied that any the related exposure that would result from the exposure to such Defaulting Lender is eliminated or fully will be 100% covered by the Revolving Credit Commitments of the Nonnon-Defaulting Lenders or and/or cash collateral will be provided by Cash Collateralization or a combination thereof the Borrower in accordance with the requirements Section 14.25(c), and participating interests in any such newly issued or increased Letter of Section 2.16(c) above Credit or otherwise newly made Swingline Loan shall be allocated among non-Defaulting Lenders in a manner reasonably consistent with Section 14.25(c)(i) (and Defaulting Lenders shall 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) the Swingline Lender or the Issuing Bank has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless the Swingline Lender or the Issuing Bank, as the case may be, shall have entered into arrangements with the Borrower or such Lender, satisfactory to the Letter Swingline Lender or the Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the Borrower, the Issuing Bank 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 Pro Rata Shares of the Revolving Credit Lenders with respect to Swingline Loans and Letters of Credit Issuer; andshall be readjusted to reflect the inclusion of such Lender’s Revolving Credit 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 Pro Rata Share.
Appears in 2 contracts
Sources: Revolving Credit and Term Loan Agreement (Washington Prime Group Inc.), Revolving Credit and Term Loan Agreement (Washington Prime Group Inc.)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for then, so long as such Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded unused portion of the Revolving Credit Commitment of such Defaulting Lender pursuant to Section 4.1(a2.13(a);
(b) the Revolving Credit Commitment of and the Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all the Required Lenders, the Required Revolving Lenders or the Required Lenders or any other requisite Lenders have taken or may take any action hereunder (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 13.19.2); provided provided, that (i) any waiverthis paragraph shall not apply to the vote of a Defaulting Lender in the case of an amendment, amendment waiver or other modification requiring the consent of all Lenders such Lender or each Lender affected Lender which affects thereby if such amendment, waiver or modification would adversely affect such Defaulting Lender differently than compared to other similarly affected Lenders shall Lenders; provided, further, that no amendment, waiver or modification that would require the consent of a Defaulting Lender under clause (1), (2), (3) or (6) of Section 9.2(b) may be made without the consent of such Defaulting Lender and (ii) the Commitment of any Defaulting Lender may not be increased or extended without the consent of such Lender;.
(c) if any Swingline Exposure or Letter of Credit LC Exposure exists at the time a such Lender becomes a Defaulting Lender, then then:
(i) all or any part of such Letter of Credit the LC Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata in accordance with their respective Applicable Percentages in respect of the Revolving Credit Commitment Percentage; provided that Facility but only to the extent (A) each Nonthe sum of all non-Defaulting Lenders’ Revolving Credit Exposure plus such Defaulting Lender’s LC Exposure attributable to Letters of Credit does not exceed the total of all non-Defaulting Lenders’ Revolving Credit Commitments and (B) the Revolving Credit Exposure may of each non-Defaulting Lender after giving effect to such reallocation does not in any event exceed the Revolving Credit Commitment of such Non-Defaulting Lender as in effect at the time of such reallocation and (B) subject to Section 13.21, neither such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Letter of Credit Issuer, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Nonnon-Defaulting Lender, ;
(ii) to if the extent that all or any portion reallocation described in clause (the “unreallocated portion”i) of the Defaulting Lender’s Letter of Credit Exposure and Swingline Exposure above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(c)(i) above or otherwiseeffected, the Borrower shall Revolver Borrowers shall, without prejudice to any other right or remedy available to it hereunder or under applicable Requirements of Law, within two three (3) Business Days following notice by the Revolver Administrative Agent (x) firstAgent, prepay cash collateralize for the benefit of each applicable Issuing Bank only the applicable Revolver Borrower’s obligations corresponding to such Swingline Defaulting Lender’s LC Exposure (after giving pro forma 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 pro forma effect to any partial reallocation pursuant to clause (i) above), in accordance with the procedures set forth in Section 3.8 2.7(j) for so long as such Letter of Credit LC Exposure is outstanding, outstanding or make other arrangements reasonably satisfactory to the Revolver Administrative Agent and to the applicable Issuing Bank with respect to such LC Exposure and obligations to fund participations;
(iii) if the Borrower Cash Collateralizes Revolver Borrowers cash collateralize any portion of such Defaulting Lender’s Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(c)clause (ii) above, the Borrower such Revolver Borrowers shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c2.13(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Letter of Credit LC Exposure is Cash Collateralized, cash collateralized except to the extent of such fees that became due and payable by any such Revolver Borrower prior to the date such Lender became a Defaulting Lender (it being understood that any cash collateral provided pursuant to this Section 2.22(c) shall be released promptly following the termination of the Defaulting Lender status of the applicable Lender);
(iv) if the Letter of Credit LC Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(c)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(c2.13(a) and Section 2.13(b) shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay Applicable Percentages;
(v) if all or any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to portion of such Defaulting Lender’s Letter of Credit Exposure during the period that such Defaulting Lender’s Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Letter of Credit LC Exposure is neither Cash Collateralized reallocated nor reallocated cash collateralized pursuant to the requirements of this Section 2.16(c)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the Letter of Credit Issuer any Issuing Bank or any other Lender hereunder, all fees payable under Section 4.1(c2.13(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure shall be payable to each applicable Issuing Bank until and to the Letter of Credit Issuer until extent that such Letter of Credit LC Exposure is Cash Collateralized reallocated and/or reallocatedcash collateralized;
(d) (i) the Letter of Credit Issuer will not so long as such Lender is a Defaulting Lender, no Issuing Bank shall be required to issue issue, amend or increase any new Letter of Credit or amend any outstanding Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereofCredit, unless the Letter of Credit Issuer it is reasonably satisfied that any the related exposure that would result from and the exposure to such Defaulting Lender is eliminated or fully Lender’s then outstanding LC Exposure will be 100% covered by the Revolving Credit Commitments of the Nonnon-Defaulting Lenders or and/or cash collateral will be provided by Cash Collateralization or a combination thereof the applicable Revolver Borrowers in accordance with the requirements Section 2.22(c), and participating interests in any newly issued or increased Letter of Section 2.16(c) above or otherwise Credit shall be allocated among non-Defaulting Lenders in a manner reasonably satisfactory consistent with Section 2.22(c)(i) (and such Defaulting Lender shall not participate therein); and
(e) if a Defaulting Lender has Revolving Credit Commitments, 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 Applicable Percentage of each non-Defaulting Lender with a Revolving Credit Commitment, shall be computed without giving effect to the Letter Revolving Credit Commitment of the Defaulting Lender. In the event that the Revolver Administrative Agent, the Revolver Borrowers and each Issuing Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Revolving Credit Issuer; andCommitment and on such date such Lender shall purchase at par (plus such amount, if any, that would otherwise be reimbursable by the Borrowers pursuant to Section 2.18 as a result of such purchase on such date) such of the Loans of the other Lenders, if any, as the Revolver Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage, and such Lender shall then cease to be a Defaulting Lender with respect to subsequent periods unless such Lender shall thereafter become a Defaulting Lender. Notwithstanding the fact that any Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, (x) no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Revolver Borrowers while such Lender was a Defaulting Lender and (y) 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 such Lender’s having been a Defaulting Lender.
Appears in 2 contracts
Sources: Credit Agreement (Herbalife Nutrition Ltd.), Credit Agreement (Herbalife Nutrition Ltd.)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion of the Revolving Commitment of such Defaulting Lender pursuant to Section 4.1(a2.12(a) and facility fees shall cease to accrue on the Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(b);
(b) the Commitment of and the Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders or any other requisite Lenders have taken or may take any action hereunder (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 13.19.02); provided provided, that this clause (ib) any waivershall not apply to the vote of a Defaulting Lender in the case of an amendment, amendment waiver or other modification requiring the consent of all Lenders such Lender or each Lender affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lender and (ii) the Commitment of any Defaulting Lender may not be increased or extended without the consent of such Lenderthereby;
(c) if any Swingline Exposure or Letter of Credit LC Exposure exists at the time a such Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Letter of Credit the Swingline Exposure and LC Exposure of such Defaulting Lender and (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such Defaulting Lender will, subject to the limitation in the proviso below, automatically term) shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata that are Revolving Lenders in accordance with their respective Revolving Credit Commitment Percentage; provided that (A) each Non-Defaulting Lender’s Revolving Credit Exposure may not in any event exceed the Revolving Credit Commitment of such Non-Defaulting Lender as in effect at the time of such reallocation and (B) subject to Section 13.21, neither such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Letter of Credit Issuer, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, (ii) Percentages but only to the extent that the sum of all or any portion (the “unreallocated portion”) of the non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Letter of Credit Swingline Exposure and Swingline LC 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 so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(c)(i) above or otherwiseeffected, the Borrower shall within two one Business Days Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of the Issuing Bank only the Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure (after giving pro forma 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 pro forma effect to any partial reallocation pursuant to clause (i) above), in accordance with the procedures set forth in Section 3.8 2.06(j) for so long as such Letter of Credit LC Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(c)clause (ii) above, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c2.12(c) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Letter of Credit LC Exposure is Cash Collateralized, cash collateralized;
(iv) if the Letter of Credit LC Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(c)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(c2.12(a) and Section 2.12(c) shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay Percentages; and
(v) if all or any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to portion of such Defaulting Lender’s Letter of Credit Exposure during the period that such Defaulting Lender’s Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Letter of Credit LC Exposure is neither Cash Collateralized reallocated nor reallocated cash collateralized pursuant to the requirements of this Section 2.16(c)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the Letter of Credit Issuer Issuing Bank or any other Lender hereunder, all facility fees payable pursuant to Section 2.12(b) that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Revolving Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 4.1(c2.12(c) with respect to such Defaulting Lender’s Letter of Credit LC Exposure not so reallocated or cash collateralized shall be payable to the Letter of Credit Issuer Issuing Bank until and to the extent that such Letter of Credit LC Exposure is Cash Collateralized reallocated and/or reallocated;cash collateralized; and
(d) (i) so long as such Revolving Lender is a Defaulting Lender, the Letter of Credit Issuer will Swingline Lenders shall not be required to issue fund any new Swingline Loan and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit or amend any outstanding Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereofCredit, unless the Letter of Credit Issuer it is reasonably satisfied that any the related exposure that would result from and the exposure to such Defaulting Lender is eliminated or fully Lender’s then outstanding LC Exposure will be 100% covered by the Revolving Credit Commitments of the Nonnon-Defaulting Lenders or and/or cash collateral will be provided by Cash Collateralization or a combination thereof the Borrower in accordance with the requirements Section 2.20(c), and Swingline Exposure related to any newly made Swingline Loan or L/C Exposure related to any newly issued or increased Letter of Section 2.16(c) above or otherwise Credit shall be allocated among non-Defaulting Lenders in a manner reasonably consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event or Bail-In Action with respect to a Lender Parent shall occur following the date hereof and for so long as such event shall continue or (ii) any Swingline Lender or the Issuing Bank has a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, such Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless such Swingline Lender or the Issuing Bank, as the case may be, shall have entered into arrangements with the Borrower or such Lender, satisfactory to such Swingline Lender or the Letter Issuing Bank, as the case may be, to defease any risk to it in respect of Credit Issuer; andsuch Lender hereunder. In the event that the Administrative Agent, the Borrower, each Swingline Lender 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 Swingline Exposure and LC Exposure 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 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 Percentage.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Xenia Hotels & Resorts, Inc.), Revolving Credit Agreement (Xenia Hotels & Resorts, Inc.)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(ai) fees Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a3.05(a);.
(bii) The Commitment, the Commitment of Maximum Credit Amount and the Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders or any other requisite the Majority Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 13.112.02); provided that (i) 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 Lender; and (ii) provided, further, that any redetermination or affirmation of the Borrowing Base shall occur without the participation of a Defaulting Lender, but the Commitment (i.e., the Applicable Percentage of any the Borrowing Base of a Defaulting Lender Lender) may not be increased or extended without the consent of such Lender;
(c) if any Swingline Exposure or Letter of Credit Exposure exists at the time a Lender becomes a Defaulting Lender; provided, then (i) all or any part of such Letter of Credit Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender willthat, subject to the limitation in the proviso belowSection 12.19, automatically be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Non-Defaulting Lenders pro rata in accordance with their respective Revolving Credit Commitment Percentage; provided that (A) each Non-Defaulting Lender’s Revolving Credit Exposure may not in any event exceed the Revolving Credit Commitment of such Non-Defaulting Lender as in effect at the time of no such reallocation and (B) subject to Section 13.21, neither such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Letter of Credit Issuer, the Swingline Lender Issuing Bank or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, .
(iiiii) to If any LC Exposure exists at the extent that time a Lender becomes a Defaulting Lender then:
(A) all or any portion part of the LC Exposure of such Defaulting Lender shall be reallocated among the Non-Defaulting Lenders in accordance with their respective Applicable Percentages (for the “unreallocated portion”) purposes of such reallocation the Defaulting Lender’s Letter Commitment shall be disregarded in determining the Non-Defaulting Lender’s Applicable Percentage) but only to the extent (1) 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’ Commitments and (2) the sum of each Non-Defaulting Lender’s Revolving Credit Exposure and Swingline plus its reallocated share of such Defaulting Lender’s LC Exposure does not exceed such Non-Defaulting Lender’s Commitment; provided further that, subject to Section 12.19, no reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Lender having become a Defaulting Lender, including any claim of a Non-Defaulting Lender as a result of such Non-Defaulting Lender’s increased exposure following such reallocation;
(B) if the reallocation described in clause (A) above cannot, or can only partially, be so reallocated to Non-Defaulting Lenderseffected, whether by reason of the first proviso in Section 2.16(c)(i) above or otherwise, then the Borrower shall within two one Business Days Day following notice by the Administrative Agent (x) first, prepay cash collateralize for the benefit of the Issuing Bank only the Borrower’s obligations corresponding to such Swingline Defaulting Lender’s LC Exposure (after giving pro forma 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 pro forma effect to any partial reallocation pursuant to clause (iA) above), or otherwise backstop such LC Exposure in such amounts and pursuant to such arrangements as are satisfactory to the Issuing Bank in its sole discretion, in accordance with the procedures set forth in Section 3.8 2.08(j) for so long as such Letter of Credit LC Exposure is outstanding, outstanding and the relevant Defaulting Lender remains a Defaulting Lender;
(iiiC) if the Borrower Cash Collateralizes cash collateralizes or backstops any portion of such Defaulting Lender’s Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(c)clause (B) above, then the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c3.05(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Letter of Credit LC Exposure is Cash Collateralized, cash collateralized or otherwise backstopped;
(ivD) if the Letter of Credit LC Exposure of the Non-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(c)clause (A) above, then the fees payable to the Lenders pursuant to Section 4.1(c3.05(a) and Section 3.05(b) shall be adjusted in accordance with such Non-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay Applicable Percentages; and
(E) if all or any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to portion of such Defaulting Lender’s Letter of Credit Exposure during the period that such Defaulting Lender’s Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Letter of Credit LC Exposure is neither Cash Collateralized reallocated nor reallocated cash collateralized nor backstopped pursuant to the requirements of this Section 2.16(c)clause (A) or (B) above, then, without prejudice to any rights or remedies of the Letter of Credit Issuer 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 Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 4.1(c3.05(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure shall be payable to the Letter of Credit Issuer Issuing Bank until such Letter of Credit LC Exposure is Cash Collateralized reallocated and/or reallocated;cash collateralized or otherwise backstopped; and
(div) (i) So long as such Lender is a Defaulting Lender, the Letter of Credit Issuer will Issuing Bank shall not be required to issue issue, amend or increase any new Letter of Credit or amend any outstanding Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereofCredit, unless the Letter of Credit Issuer it is reasonably satisfied that any the related exposure that would result from and the exposure to such Defaulting Lender is eliminated or fully Lender’s then outstanding LC Exposure will be 100% covered by the Revolving Credit Commitments of the Non-Defaulting Lenders and/or cash collateral or other backstop arrangement will be provided by Cash Collateralization or a combination thereof the Borrower in accordance with the requirements Section 4.03(c), and participating interests in any such newly issued or increased Letter of Section 2.16(c) above or otherwise Credit shall be allocated among Non-Defaulting Lenders in a manner reasonably consistent with Section 4.03(c)(iii)(A) (and such Defaulting Lender shall not participate therein). If a Bankruptcy Event or a Bail-In Action with respect to a Lender Parent of any Lender shall occur following the Effective Date and for so long as such event shall continue, the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless the Issuing Bank shall have entered into arrangements with the Borrower or such Lender, satisfactory to the Letter Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the 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 and such Lender is no longer a Defaulting Lender, then the LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date, if necessary, such Lender shall purchase at par such of the Loans and/or participations in Letters of Credit Issuer; andof the other Lenders as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans and/or participations in Letters of Credit in accordance with its Applicable Percentage.
Appears in 2 contracts
Sources: Credit Agreement (Sitio Royalties Corp.), Credit Agreement (Desert Peak Minerals Inc.)
Defaulting Lenders. 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 Commitment of such Defaulting Lender pursuant to Section 4.1(a3.03(a);
(b) the Commitment of Commitments and the Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders or any other requisite Lenders have taken or may take any action hereunder (including any consent to any amendment amendment, modification or waiver pursuant to Section 13.110.02); provided that that, except as otherwise provided in Section 10.02, (i) 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 (ii) any amendment or modification that increases, or extends the maturity of, such Defaulting Lender’s Commitment or reduces the principal amount of, or rate of interest on, any Loan made by such Defaulting Lender may not be increased or extended without Lender, shall require the consent of such Defaulting Lender;
(c) if any Swingline Exposure or Letter of Credit Exposure exists at the time a Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Swingline Exposure and such Letter of Credit Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata in accordance with their respective Revolving Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Credit Commitment Percentage; provided that (A) each Non-Exposures plus such Defaulting Lender’s Revolving Credit Swingline Exposure may not in any event exceed the Revolving Credit Commitment of such Non-Defaulting Lender as in effect at the time of such reallocation and (B) subject to Section 13.21, neither such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Letter of Credit Issuer, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, (ii) to the extent that all or any portion (the “unreallocated portion”) of the Defaulting Lender’s Letter of Credit Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments and Swingline Exposure (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 so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(c)(i) above or otherwiseeffected, the Borrower shall within two (2) Business Days following notice by the Administrative Agent (x) first, prepay such Defaulting Lender’s Swingline Exposure and (y) second, cash collateralize such Defaulting Lender’s Letter of Credit Exposure (after giving pro forma 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 pro forma effect to any partial reallocation pursuant to clause (i) above), in accordance with the procedures set forth in Section 3.8 2.11(b) for so long as such Letter of Credit Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s Letter of Credit Exposure pursuant to the requirements of this Section 2.16(c2.12(c), the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c3.03(b) with respect to such Defaulting Lender’s Letter of Credit Exposure during the period such Defaulting Lender’s Letter of Credit Exposure is Cash Collateralized, cash collateralized;
(iv) if the Letter of Credit Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(c2.12(c), then the fees payable to the Lenders pursuant to Section 4.1(cSections 3.03(a) and 3.03(b) shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to such Defaulting Lender’s Letter of Credit Exposure during the period that such Defaulting Lender’s Letter of Credit Exposure is reallocated, or Applicable Percentages; or
(v) if any Defaulting Lender’s Letter of Credit Exposure is neither Cash Collateralized cash collateralized nor reallocated pursuant to the requirements of this Section 2.16(c2.12(c), then, without prejudice to any rights or remedies of the Letter of Credit Issuer Issuing Bank or any Lender hereunder, all letter of credit fees payable under Section 4.1(c3.03(b) with respect to such Defaulting Lender’s Letter of Credit Exposure shall be payable to the Letter of Credit Issuer Issuing Bank until such Letter of Credit Exposure is Cash Collateralized cash collateralized and/or reallocated;; and
(d) (i) if and so long as any Lender is a Defaulting Lender, the Letter of Credit Issuer will Swingline Lender shall not be required to issue fund any new Swingline Loan and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure 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 2.12(c), and participating interests in any such newly made Swingline Loan or newly issued or increased Letter of Credit or amend any outstanding shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.12(c)(i) (and Defaulting Lenders shall not participate therein). In the event that the Administrative Agent, the Borrower, the Swingline Lender 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 Swingline Exposure and Letter of Credit Exposure of the Lenders shall be readjusted to increase reflect the face amount thereof, alter the drawing terms thereunder or extend the expiry inclusion of such Lender’s Commitments and on such date thereof, unless the Letter such Lender shall purchase at par such of Credit Issuer is reasonably satisfied that any exposure that would result from the exposure to such Defaulting Lender is eliminated or fully covered by the Revolving Credit Commitments Loans of the Non-Defaulting other Lenders or by Cash Collateralization or a combination thereof as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Revolving Loans in accordance with its Applicable Percentage, and all cash collateral and accrued interest thereon held by the requirements of Section 2.16(c) above Administrative Agent or otherwise in a manner reasonably satisfactory the Issuing Bank shall be returned to the Letter of Credit Issuer; andBorrower forthwith.
Appears in 2 contracts
Sources: Credit Agreement (Hawaiian Electric Co Inc), Credit Agreement (Hawaiian Electric Co Inc)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Committed Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Committed Lender is a Defaulting Lender:
(a) fees The Unused Fee shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a);2.05 if it remains a Defaulting Lender at the time of any reduction of the Aggregate Commitment pursuant to Section 2.03.
(b) the The Commitment of and the Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders or any other requisite Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 13.110.01); , provided that (i) 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 (ii) the Commitment of any Defaulting Lender may not be increased or extended without the consent of such Lender;.
(c) if So long as an Event of Termination has not occurred and is continuing, any Swingline Exposure or Letter of Credit Exposure exists at the time a Lender becomes a Defaulting Lender, then (i) all or any part of such Letter of Credit Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject amount payable to the limitation in the proviso below, automatically be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Non-Defaulting Lenders pro rata in accordance with their respective Revolving Credit Commitment Percentage; provided that (A) each Non-Defaulting Lender’s Revolving Credit Exposure may not in any event exceed the Revolving Credit Commitment of such Non-Defaulting Lender as in effect at the time of such reallocation and (B) subject to Section 13.21, neither such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Letter of Credit Issuer, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting any member of its Lender to Group hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be a Non-Defaulting Lender, (ii) to the extent that all or any portion (the “unreallocated portion”) of the Defaulting Lender’s Letter of Credit Exposure and Swingline Exposure cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(c)(i) above or otherwise, the Borrower shall within two Business Days following notice by the Administrative Agent (x) first, prepay such Swingline Exposure (after giving pro forma 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 pro forma effect to any partial reallocation pursuant to clause (i) above), in accordance with the procedures set forth in Section 3.8 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 the requirements of this Section 2.16(c), the Borrower shall not be required to pay any fees payable to such Defaulting Lender pursuant to Section 4.1(c2.05 hereof) with respect shall, in lieu of being distributed to such Defaulting Lender’s Letter Lender or member, be retained by the Program Agent in a segregated account and, subject to any applicable requirements of Credit Exposure during law, be applied at such time or times as may be determined by the period Program Agent to (i) the funding or cash collateralization of the Commitment of such Defaulting Lender as required by this Agreement, (ii) the funding of any Advance in respect of which such Defaulting Lender has failed to fund its Pro Rata Share as required by this Agreement, and (iii) if so determined by the Program Agent and the Borrower, be held in such account as cash collateral for future funding obligations of the Defaulting Lender’s Letter of Credit Exposure is Cash Collateralized, (iv) if Lender Group under this Agreement. Amounts held in such segregated account will not accrue Interest or Fees. Any investment income earned from investments in the Letter of Credit Exposure of the Non-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(c), then the fees payable to the Lenders pursuant to Section 4.1(c) segregated account shall be adjusted retained in accordance with such Non-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to such Defaulting Lender’s Letter of Credit Exposure during the period that such Defaulting Lender’s Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Letter of Credit Exposure is neither Cash Collateralized nor reallocated pursuant to the requirements of this Section 2.16(c), then, without prejudice to any rights or remedies of the Letter of Credit Issuer or any Lender hereunder, all fees payable under Section 4.1(c) with respect to 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;segregated account.
(d) (i) In the Letter of Credit Issuer will not be required to issue any new Letter of Credit or amend any outstanding Letter of Credit to increase event that the face amount thereof, alter Program Agent and the drawing terms thereunder or extend the expiry date thereof, unless the Letter of Credit Issuer is reasonably satisfied Borrower agree that any exposure that would result from the exposure to such a Defaulting Lender is eliminated or fully covered by has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Revolving Credit Commitments of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof and the Lender Group Limit of the Lender’s related Lender Group 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 in its Lender Group as its related Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Pro Rata Share of the requirements of Section 2.16(c) above or otherwise Lender Group Limit and all funds held in a manner reasonably satisfactory segregated account in respect of such Lender Group under Section 2.18(c) shall be released to the Letter Administrative Agent of Credit Issuer; andsuch Lender Group.
Appears in 2 contracts
Sources: Loan and Servicing Agreement (SNAP-ON Inc), Omnibus Amendment (SNAP-ON Inc)
Defaulting Lenders. (a) Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(ai) the standby fees payable pursuant to Section 4.6 shall cease to accrue on the unfunded unused portion of the Revolving Commitment (and, if applicable, the Operating Commitment) of such Defaulting Lender pursuant to Section 4.1(a)Lender;
(bii) a Defaulting Lender shall not be included in determining whether, and the Commitment of and the Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether whether, all Lenders or the Required Lenders or any other requisite Majority Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 13.116.10); , provided that (i) any waiver, waiver or amendment or modification requiring the consent of all Lenders or each affected Lender which that affects such Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lender; and
(iii) for the avoidance of doubt, the Borrower shall retain and reserve its other rights and remedies respecting each Defaulting Lender.
(b) If any Lender and fails to fund its Applicable Percentage of an Advance hereunder, then each other Lender shall fund a portion of such defaulted amount in an amount equal to such other Lender’s Applicable Percentage (ii) and, in calculating a Lender’s Applicable Percentage, the Commitment of any Defaulting Lender may not shall be increased or extended without the consent excluded) of such Lender;unfunded portion; provided that, for certainty, no Lender shall be obligated by this Section 16.11 to make or provide an Advance in excess of its Commitment.
(c) If the re-allocation described in clause (b) above cannot be effected, or can only partially be effected, then (to the extent permitted by Applicable Law) such Defaulting Lender shall, within one (1) Banking Day following notice by the Agent, provide Cash Collateral to the Agent for such Defaulting Lender’s Applicable Percentage of such Advance (after giving effect to any partial re-allocation pursuant to clause (b) above) for so long as such Advance is outstanding, and if such Defaulting Lender shall fail to provide such Cash Collateral, then, at the request of the Fronting Lender, the Borrower shall provide such Cash Collateral to the Agent.
(d) If any Swingline Exposure or Letter of Credit Exposure exists is outstanding at the time that a Lender becomes a Defaulting Lender, then then:
(i) all or any part of such Defaulting Lender’s Applicable Percentage of such Letter of Credit Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) re-allocated among the Nonnon-Defaulting Lenders pro rata in accordance with their respective Revolving Credit Commitment PercentageApplicable Percentages; provided that such re-allocation may only be effected if and to the extent that (A) each Nonsuch re-allocation would not cause any non-Defaulting Lender’s Revolving Credit Exposure may not in any event Applicable Percentage of all Advances to exceed the Revolving Credit Commitment of such Non-Defaulting Lender as in effect at the time of such reallocation its applicable Commitment(s) and (B) subject the conditions precedent in Sections 3.2(b), 3.2(c) and 3.2(d) are satisfied at such time;
(ii) if the re-allocation described in clause (i) above cannot be effected, or can only partially be effected, then such Defaulting Lender shall (to the extent permitted by Applicable Law), within one (1) Banking Day following notice by the Agent, provide Cash Collateral to the Agent for such Defaulting Lender’s Applicable Percentage share of such Letter of Credit (after giving effect to any partial re-allocation pursuant to clause (i) above) for so long as such Letter of Credit is outstanding, and if such Defaulting Lender shall fail to provide such Cash Collateral, then, at the request of the Fronting Lender, the Borrower shall provide such Cash Collateral to the Agent; and
(iii) if the Applicable Percentages of the non-Defaulting Lenders are re-allocated pursuant to this Section 16.11(d), then the LC Fees payable to the Lenders pursuant to Section 13.21, neither 4.5 shall be adjusted to give effect to such reallocation nor any payment by a Nonre-allocations in accordance with each such non-Defaulting Lender Lender’s Applicable Percentages and if the Borrower provides Cash Collateral pursuant thereto will to clause (ii) above, then the Borrower shall not be required to pay the issuance fees or Fronting Fees attributable to the Cash Collateralized exposure of such Letters of Credit. Subject to Section 16.17, no reallocation hereunder shall constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Letter of Credit Issuer, the Swingline Lender or any other Lender may have party hereunder against such a Defaulting Lender or cause such 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.
(e) If any Lender shall cease to be a Non-Defaulting Lender, (ii) to the extent that all or any portion (the “unreallocated portion”) then, upon becoming aware of the Defaulting Lender’s Letter of Credit Exposure and Swingline Exposure cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(c)(i) above or otherwisesame, the Borrower Agent shall within two Business Days following notice by notify the Administrative Agent (x) first, prepay such Swingline Exposure (after giving pro forma effect to any partial reallocation pursuant to clause (i) above) other Lenders and (y) second, Cash Collateralize such Defaulting Lender’s Letter of Credit Exposure (after giving pro forma effect to any partial reallocation pursuant to clause (i) above), in accordance with the procedures set forth written direction of the Agent) such Lender (which has ceased to be a Defaulting Lender) shall purchase, and the other Lenders shall on a pro rata basis sell and assign to such Lender, portions of such Loans equal in total to such Lender’s Applicable Percentage share thereof without regard to sub Section 3.8 for so long as such Letter (b) of Credit Exposure is outstandingthis Section 16.11; and
(f) Without limiting the generality of Section 16.11(a)(iii), (iii) if each Defaulting Lender shall indemnify the Borrower Cash Collateralizes for any portion losses, claims, costs, damages or liabilities (including reasonable out-of-pocket expenses and reasonable legal fees on a solicitor and his own client basis) incurred by the Borrower as a result of such Defaulting Lender’s Letter of Credit Exposure pursuant Lender failing to comply with the requirements terms of this Section 2.16(c)Agreement, the Borrower shall not be including any failure to fund its portion of any Advance required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c) with respect to such Defaulting Lender’s 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 the requirements of this Section 2.16(c), then the fees payable to the Lenders pursuant to Section 4.1(c) shall be adjusted in accordance with such Non-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to such Defaulting Lender’s Letter of Credit Exposure during the period that such Defaulting Lender’s Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Letter of Credit Exposure is neither Cash Collateralized nor reallocated pursuant to the requirements of this Section 2.16(c), then, without prejudice to any rights or remedies of the Letter of Credit Issuer or any Lender made by it hereunder, all fees payable under Section 4.1(c) with respect to 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;
(d) (i) the Letter of Credit Issuer will not be required to issue any new Letter of Credit or amend any outstanding Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the Letter of Credit Issuer is reasonably satisfied that any exposure that would result from the exposure to such Defaulting Lender is eliminated or fully covered by the Revolving Credit Commitments of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof in accordance with the requirements of Section 2.16(c) above or otherwise in a manner reasonably satisfactory to the Letter of Credit Issuer; and.
Appears in 2 contracts
Sources: Credit Agreement (SemGroup Corp), Credit Agreement (SemGroup Corp)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(ai) fees No Defaulting Lender shall cease be entitled to accrue on receive any fee payable under Section 4 or any interest at the unfunded portion Default Rate payable under Section 2.8(d) for any period during which that Lender is a Defaulting Lender (and the Borrower shall not be required to pay any such fee or interest that otherwise would have been required to have been paid to that Defaulting Lender).
(ii) Each Defaulting Lender shall be entitled to receive Revolving Letter of Credit Fees for any period during which that Lender is a Defaulting Lender only to the extent allocable to its applicable Revolving Credit Commitment Percentage of the Commitment Stated Amount of such Letters of Credit for which it has provided cash collateral satisfactory to the applicable Revolving Letter of Credit Issuer.
(iii) With respect to any Revolving Letter of Credit Fee not required to be paid to any Defaulting Lender pursuant to Section 4.1(a);clause (i) or (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 L/C Obligations that has been reallocated to such Non-Defaulting Lender pursuant to clause (b) below, (y) pay to the Revolving Letter of Credit Issuer the amount of any such fee otherwise payable to such Defaulting Lender to the extent allocable to such Revolving Letter of Credit Issuer’s Revolving Credit Exposure to such Defaulting Lender, and (z) not be required to pay the remaining amount of any such fee.
(b) the Commitment of and the If any Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders or any other requisite Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 13.1); provided that (i) 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 (ii) the Commitment of any Defaulting Lender may not be increased or extended without the consent of such Lender;
(c) if any Swingline Exposure or Letter of Credit Exposure exists at the time a Lender becomes a Defaulting Lender, then (i) all or any part of such Revolving Letter of Credit Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Non-Defaulting Lenders pro rata in accordance with their respective Revolving Credit Commitment Percentage; provided that (A) each Non-Defaulting Lender’s Revolving Letter of Credit Exposure may not in any event exceed the Revolving Credit Commitment of such Non-Defaulting Lender as in effect at the time of such reallocation and (B) subject to Section 13.2113.22, neither such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Revolving Letter of Credit IssuerIssuers, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, (ii) to the extent that all or any portion (the “unreallocated portion”) of the Defaulting Lender’s Revolving Letter of Credit Exposure and Swingline Exposure cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(c)(i2.16(b)(i) above or otherwise, the Borrower shall within two Business Days following written notice by the Administrative Agent (x) first, prepay such Swingline Exposure (after giving pro forma effect to any partial reallocation pursuant to clause (i) above) and (y) second, Cash Collateralize such Defaulting Lender’s Revolving Letter of Credit Exposure (after giving pro forma effect to any partial reallocation pursuant to clause (i) above), in accordance with the procedures set forth in Section 3.8 for so long as such Revolving Letter of Credit Exposure is outstanding, (iii) if the Borrower Cash Collateralizes any portion of such Defaulting Lender’s Revolving Letter of Credit Exposure pursuant to the requirements of this Section 2.16(c2.16(b)(i), the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c) with respect to such Defaulting Lender’s Revolving Letter of Credit Exposure during the period such Defaulting Lender’s Revolving Letter of Credit Exposure is Cash Collateralized, (iv) if the Revolving Letter of Credit Exposure of the Non-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(c2.16(b), then the fees payable to the Lenders pursuant to Section 4.1(c) shall be adjusted in accordance with such Non-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to such Defaulting Lender’s Revolving Letter of Credit Exposure during the period that such Defaulting Lender’s Revolving Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Revolving Letter of Credit Exposure is neither Cash Collateralized nor reallocated pursuant to the requirements of this Section 2.16(c2.16(b), then, without prejudice to any rights or remedies of the applicable Revolving Letter of Credit Issuer or any Lender hereunder, all fees payable under Section 4.1(c) with respect to such Defaulting Lender’s Revolving Letter of Credit Exposure shall be payable to the applicable Revolving Letter of Credit Issuer until such Revolving Letter of Credit Exposure is Cash Collateralized and/or reallocated;.
(dc) (i) the No Revolving Letter of Credit Issuer will not be required to issue any new Revolving Letter of Credit or to amend any outstanding Revolving Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder thereof or extend the expiry date thereof, unless the applicable Revolving Letter of Credit Issuer is reasonably satisfied that any exposure that would result from the exposure to such Defaulting Lender is eliminated or fully covered by the Revolving Credit Commitments of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof in accordance with the requirements of Section 2.16(c2.16(b) above or otherwise in a manner reasonably satisfactory to the applicable Revolving Letter of Credit IssuerIssuer and the Borrower.
(d) If the Borrower, the Administrative Agent and the Revolving Letter of Credit Issuers agree in writing in their discretion that a Lender that is a Defaulting Lender should no longer be deemed to be a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon, as of the effective date specified in such notice and subject to any conditions set forth therein, such Lender will cease to be a Defaulting Lender and will be a Non-Defaulting Lender and any applicable Cash Collateral shall be promptly returned to the Borrower and any Revolving Letter of Credit Exposure of such Lender reallocated pursuant to the requirements of Section 2.16(b) shall be reallocated back to such Lender; andprovided that, except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Non-Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from such ▇▇▇▇▇▇’s having been a Defaulting Lender.
Appears in 2 contracts
Sources: Credit Agreement (Vistra Corp.), Credit Agreement (Vistra Corp.)
Defaulting Lenders. Notwithstanding any provision of this Agreement anything to the contrarycontrary contained in this Agreement, 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 Swing Line Commitment of such Defaulting Lender pursuant to Section 4.1(a);
(b) the Commitment of and the Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders or any other requisite Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 13.1); provided that (i) 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 (ii) the Commitment of any Defaulting Lender may not be increased or extended without the consent of such Lender;
(c) if any Swingline Exposure or Letter of Credit Exposure Commitment exists at the time a Lender having a Commitment becomes a Defaulting Lender (such Lender, then a “Defaulting Revolving Lender”) then:
(ia) such Defaulting Revolving Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this amendment shall be restricted as set forth in the definition of Required Lenders and Section 15.1;
(b) all or any part of such Swing Line Commitment and Letter of Credit Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the proviso below, automatically Commitment shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Revolving Lenders pro rata in accordance with their respective Revolving Pro Rata Share of such Swing Line Commitment and/or Letter of Credit Commitment Percentagebut only to the extent (i) the sum of the non-Defaulting Revolving Lenders’ Pro Rata Shares of the sum, as at any date of determination, of (x) the aggregate principal amount of all Revolving Loans (other than Revolving Loans made for the purpose of reimbursing an Issuing Lender for any amount drawn under any Letter of Credit, but not yet so applied), (x) the aggregate principal amount of all outstanding Swing Line Loans and (z) the Letter of Credit Usage, plus such Defaulting Revolving Lender’s Pro Rata Share of Revolving Exposure do not exceed the total of all non-Defaulting Revolving Lenders’ Commitments and (ii) the conditions set forth in Section 12.3 are satisfied at such time; provided that the aggregate obligation of each non-Defaulting Revolving Lender to acquire, refinance or fund participations in Letters of Credit and Swing Line Loans shall not exceed the positive difference, if any, of (A) each Nonthe Commitment of that non-Defaulting Lender minus (B) the sum of the aggregate outstanding principal amount of the Revolving Loans of such non-Defaulting Lender plus such non-Defaulting Lender’s Revolving Credit Exposure may not in any event exceed Pro Rata Share of the Revolving Credit Commitment of such Non-Defaulting Lender as in effect at the time of such reallocation outstanding Swing Line Loans and (B) subject to Section 13.21, neither such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Letter of Credit Issuer, Usage;
(c) if the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, reallocation described in clause (iia) to the extent that all or any portion (the “unreallocated portion”) of the Defaulting Lender’s Letter of Credit Exposure and Swingline Exposure above cannot, or can only partially, be so effected, the Company shall (i) first, within one Business Day following notice by the Administrative Agent, prepay any outstanding Swing Line Loans to the extent the Swing Line Commitments related thereto have not been reallocated pursuant to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(c)(iclause (a) above or otherwiseand (ii) second, the Borrower shall within two five Business Days following notice by the Administrative Agent (x) firstAgent, prepay Cash Collateralize such Swingline Exposure Defaulting Lender’s Pro Rata Share of the Letter of Credit Commitment (after giving pro forma effect to any partial reallocation pursuant to clause (ia) above) and (y) second, Cash Collateralize such Defaulting Lender’s Letter of Credit Exposure (after giving pro forma effect to any partial reallocation pursuant to clause (i) above), in accordance with the procedures set forth in Section 3.8 for so long as such Letter of Credit Exposure Commitment is outstanding, ;
(iii) if the Borrower Cash Collateralizes any portion of such Defaulting Lender’s Letter of Credit Exposure pursuant to the requirements of this Section 2.16(c), the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c) with respect to such Defaulting Lender’s Letter of Credit Exposure during the period such Defaulting Lender’s Letter of Credit Exposure is Cash Collateralized, (ivd) if the Letter of Credit Exposure Commitment of the Nonnon-Defaulting Revolving Lenders is reallocated pursuant to the requirements of this Section 2.16(c)clause (a) above, then the fees payable to the Lenders pursuant to Section 4.1(c) 5 solely in respect of the unfunded portion of such Lenders’ Commitment shall be adjusted in accordance with such Nonnon-Defaulting Revolving Lenders’ Revolving Credit Commitment Percentages Pro Rata Shares; and
(e) If the Company, the Administrative Agent, the Swing Line Lender and each Issuing Lender agree in writing that a Lender is no longer a Defaulting Lender, the Borrower shall not be required Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to pay any fees to the Defaulting Lender pursuant to Section 4.1(c) conditions set forth therein (which may include arrangements with respect to any cash collateral), that Lender will, to the extent applicable, purchase at par that portion of outstanding Loans of the other Lenders or take such Defaulting Lender’s Letter other actions as the Administrative Agent may determine to be necessary to cause the Loans and funded and unfunded participations in Letters of Credit Exposure during the period that such Defaulting Lender’s Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Letter of Credit Exposure is neither Cash Collateralized nor reallocated pursuant and Swing Line Loans to the requirements of this Section 2.16(c), then, without prejudice to any rights or remedies of the Letter of Credit Issuer or any Lender hereunder, all fees payable under Section 4.1(c) with respect to 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;
(d) (i) the Letter of Credit Issuer will not be required to issue any new Letter of Credit or amend any outstanding Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the Letter of Credit Issuer is reasonably satisfied that any exposure that would result from the exposure to such Defaulting Lender is eliminated or fully covered held pro rata by the Revolving Credit Commitments of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof in accordance with the requirements Commitments (without giving effect to paragraph (b) above), whereupon, such Lender will cease to be a Defaulting Revolving Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of Section 2.16(c) above or otherwise in the Company while that Lender was a manner reasonably satisfactory Defaulting Revolving Lender; and provided, further, that except to the Letter extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Revolving Lender to Lender will constitute a waiver or release of Credit Issuer; andany claim of any party hereunder arising from that Lender’s having been a Defaulting Revolving Lender.
Appears in 2 contracts
Sources: Credit Agreement (Centene Corp), Credit Agreement (Centene Corp)
Defaulting Lenders. 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 Commitment of such Defaulting Lender shall not be entitled to receive any commitment fee pursuant to Section 4.1(a2.09(a) for any period during which it is a Defaulting Lender (and the Company shall not be required to pay any such fee that would otherwise have been required to have been paid to such Defaulting Lender);
(b) the Commitment of Commitments and the Revolving Credit Exposure Exposures of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders or any other requisite Lenders have taken or may take any action hereunder (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 13.19.02); provided except that (i) 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 (ii) the Commitment Commitments of any Defaulting Lender may not be increased or extended without the consent of such Lender and (ii) any waiver, amendment or other modification requiring the consent of all Lenders or each affected Lender that by its terms affects any Defaulting Lender more adversely than other affected Lenders shall require the consent of such Defaulting Lender;; and
(c) if with respect to any Swingline Exposure or Several Letter of Credit Exposure exists and/or the L/C Obligations under the applicable Tranche of such Defaulting Lender with respect thereto,
(i) such Defaulting Lender shall not be entitled to receive any Letter of Credit fee pursuant to Section 2.09(b) for any period during which it is a Defaulting Lender (and (except as provided in clause (c)(iii) below) the Company shall not be required to pay any such fee that would otherwise have been required to have been paid to such Defaulting Lender);
(ii) subject to the condition that no Default has occurred and is continuing, with respect to any Several Letter of Credit outstanding at the time a such Lender becomes a Defaulting Lender (other than any Several Letter of Credit with respect to which another Lender has agreed to act as the Limited Fronting Lender for such Defaulting Lender), then with the consent of the beneficiary thereunder to the extent required by the terms thereof or under applicable Law, (i) all or any part portion of such Letter of Credit Exposure of the L/C Obligations held by such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to under the limitation in the proviso below, automatically applicable Tranche shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Non-Defaulting Lenders pro rata in accordance with their respective Revolving Credit Commitment Percentage; provided NAIC Tranche Applicable Percentages or Non-NAIC Tranche Applicable Percentages, as the case may be, but only to the extent that (A) the sum of the aggregate NAIC Tranche Credit Exposure or Non-NAIC Tranche Credit Exposure, as the case may be, of Non-Defaulting Lenders plus the Outstanding Amount of the L/C Obligations held by such Defaulting Lender under such Tranche shall not exceed the total NAIC Tranche Commitments or Non-NAIC Tranche Commitments, as the case may be, of the Non-Defaulting Lenders (except as provided in Section 2.20(k) for Limited Fronting Lenders) and (B) the aggregate NAIC Tranche Credit Exposure or Non-NAIC Tranche Credit Exposure, as the case may be, of each Non-Defaulting Lender’s Revolving Credit Exposure may Lender under such Tranche shall not in any event exceed the Revolving Credit respective NAIC Tranche Commitment or Non-NAIC Tranche Commitment of such Non-Defaulting Lender (except as provided in effect at the time of Section 2.20(k) if such reallocation and (B) subject to Section 13.21, neither such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute is a waiver or release of any claim the Borrower, the Administrative Agent, the Limited Fronting Lender) and (ii) each such Several Letter of Credit Issuer, shall be amended to specify the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, (ii) Lenders that are parties to the extent that all or any portion (the “unreallocated portion”) of the Defaulting Lender’s such Several Letter of Credit Exposure Credit, after giving effect to such event, and Swingline Exposure cannot, or can only partially, be so reallocated to such Non-Defaulting Lenders, whether by reason ’ respective NAIC Tranche Applicable Percentages or Non-NAIC Tranche Applicable Percentages with respect thereto as of the first proviso in Section 2.16(c)(i) above or otherwiseeffective date of such amendment (and, notwithstanding anything herein to the Borrower shall within two Business Days following notice by the Administrative Agent (x) firstcontrary, prepay such Swingline Exposure (after giving pro forma effect to any partial reallocation pursuant to clause (i) above) and (y) second, Cash Collateralize such Defaulting Lender’s Lender shall have no obligation under each such Several Letter of Credit Exposure (after giving pro forma effect to any partial reallocation pursuant to clause (i) abovethe extent such L/C Obligations in respect thereof are so allocated), in accordance with the procedures set forth in Section 3.8 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 the requirements of this Section 2.16(c), the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c) with respect to such Defaulting Lender’s 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 L/C Obligations held by the Non-Defaulting Lenders is under the applicable Tranche are reallocated with respect to any Several Letter of Credit pursuant to the requirements of this Section 2.16(c)clause (c)(ii) above, then the Letter of Credit fees payable to the Lenders with respect to such Several Letter of Credit pursuant to Section 4.1(c2.09(b) shall be adjusted in accordance with such Non-Defaulting Lenders’ Revolving Credit Commitment respective NAIC Tranche Applicable Percentages and the Borrower shall not be required to pay any fees to the Defaulting or Non-NAIC Tranche Applicable Percentages; and
(iv) so long as such Lender pursuant to Section 4.1(c) with respect to such remains a Defaulting Lender’s , the L/C Obligations of the Lenders under such Tranche in respect of any Several Letter of Credit Exposure during requested to be issued hereunder shall be allocated among Non-Defaulting Lenders in a manner consistent with clause (c)(ii) above (and, notwithstanding anything herein to the period that contrary, such Defaulting Lender’s Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Letter of Credit Exposure is neither Cash Collateralized nor reallocated pursuant to the requirements of this Section 2.16(c), then, without prejudice to any rights or remedies of the Letter of Credit Issuer or any Lender hereunder, all fees payable shall have no obligation under Section 4.1(c) with respect to each 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;
(d) (i) the Letter of Credit Issuer will not be required to issue any new Letter of Credit or amend any outstanding Several Letter of Credit to increase the face amount thereofextent such L/C Obligations in respect thereof are so allocated). In the event that the Administrative Agent, alter the drawing terms thereunder or extend applicable Several L/C Agent and the expiry date thereof, unless the Letter of Credit Issuer is reasonably satisfied Company each agrees that any exposure that would result from the exposure to such a Defaulting Lender is eliminated or fully covered has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then on such date, (A) to the extent the L/C Obligations held by the Revolving Credit Commitments of the Non-Defaulting Lenders were theretofore reallocated with respect to any Several Letter of Credit pursuant to clause (c)(ii) or (iv) above, all adjustments shall be made to such Several Letters of Credit consistent with Section 2.20(b)(iv) (including amendments to each such Several Letter of Credit and/or, if applicable, purchases at par by Cash Collateralization or a combination thereof such Lender of the Unreimbursed Amounts then outstanding (if any) of the other Lenders thereunder) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such L/C Obligations under the applicable Tranche in accordance with its respective NAIC Tranche Applicable Percentage or Non-NAIC Tranche Applicable Percentage; (B) if the requirements of Section 2.16(c) above or otherwise in a manner reasonably satisfactory L/C Obligations held by the Non-Defaulting Lenders under such Tranche were not theretofore reallocated with respect to the such Several Letter of Credit Issuerpursuant to clause (c)(ii) above, but instead the face amount of any such Several Letter of Credit was increased or a new Several Letter of Credit was issued hereunder in favor of the beneficiary of such Several Letter of Credit in order to provide such beneficiary with an aggregate undrawn face amount of Letters of Credit from the Non-Defaulting Lenders in the amount required by such beneficiary, the amount of such Several Letter of Credit or new Several Letter of Credit shall be amended to decrease the amount thereof, or the Company shall arrange for such new Letter of Credit to be surrendered by such beneficiary to such Several L/C Agent, in order to reflect the inclusion of such Lender’s respective NAIC Tranche Commitment or Non-NAIC Tranche Commitment; andand (C) 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 Applicable Percentage with respect to each applicable Tranche, whereupon such Lender shall no longer be a Defaulting Lender.
Appears in 2 contracts
Sources: Credit Agreement (American International Group Inc), Credit Agreement (American International Group Inc)