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 Commitment of such Defaulting Lender pursuant to Section 2.10(a); (b) the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.02); provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of each Lender or each Lender affected thereby; (c) if any LC Exposure exists at the time such Lender becomes a Defaulting Lender then: (i) all or any part of the LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Commitments but only to the extent 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; (ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Parent Borrower shall within one Business Day following notice by the Administrative Agent cash collateralize for the benefit of the Issuing Bank only such Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(k) for so long as such LC Exposure is outstanding; (iii) if the Parent Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Parent Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.04(f) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized; (iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.10(a) and 2.04(f) shall be adjusted in accordance with such non-Defaulting Lenders’ Commitment; and (v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all fees payable under Section 2.04(f) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and (d) so long as such Lender is a Defaulting Lender, no Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the applicable Borrower in accordance with Section 2.19(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 2.19(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 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, as the case may be, shall have entered into arrangements with the Parent Borrower or such Lender, satisfactory to the Issuing Bank to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the Parent Borrower and the Issuing Bank each agrees, acting in good faith and a commercially reasonable manner, 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 Commitment.
Appears in 3 contracts
Sources: Credit Agreement (Ralph Lauren Corp), Credit Agreement (Ralph Lauren Corp), Credit Agreement (Polo Ralph Lauren 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 Available Commitment Revolving Credit Commitments of such Defaulting Lender pursuant to Section 2.10(a2.09(a);
(b) the Commitment Commitment, Outstanding Amount of Term Loans and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.0210.01); providedprovided that any waiver, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver amendment or other modification requiring the consent of each Lender all Lenders or each affected Lender which affects such Defaulting Lender disproportionately when compared to the other affected therebyLenders, or increases or extends the Commitment of such Defaulting Lender, shall require the consent of such Defaulting Lender;
(c) if any LC Exposure exists Swing Line Obligations or L/C Obligations exist at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of the LC Exposure Swing Line Obligations or L/C Obligations of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Commitments Pro Rata Shares but only to the extent the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s LC Exposure Swing Line Obligations and L/C Obligations does not exceed the total of all non-Defaulting Lenders’ Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Parent Borrower Borrowers shall within one three (3) Business Day Days following notice by the Administrative Agent cash collateralize (x) first, prepay such Swing Line Obligations and (y) second, Cash Collateralize for the benefit of the Issuing Bank L/C Issuer only such Borrower’s the Borrowers’ obligations corresponding to such Defaulting Lender’s LC Exposure L/C Obligations (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(k2.03(f) for so long as such LC Exposure is L/C Obligations are outstanding;
(iii) if the Parent Borrower cash collateralizes Borrowers Cash Collateralize any portion of such Defaulting Lender’s LC Exposure L/C Obligations pursuant to clause (ii) above, the Parent Borrower Borrowers shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.04(f2.03(h) with respect to such Defaulting Lender’s LC Exposure L/C Obligations during the period such Defaulting Lender’s LC Exposure is cash collateralizedL/C Obligations are Cash Collateralized;
(iv) if the LC Exposure L/C Obligations of the non-Defaulting Lenders is are reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.10(a2.09(a) and 2.04(f2.03(h) shall be adjusted in accordance with such non-Defaulting Lenders’ CommitmentPro Rata Shares; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure L/C Obligations is neither reallocated nor cash collateralized Cash Collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank the L/C Issuer or any other Lender hereunder, all letter of credit fees payable under Section 2.04(f2.03(h) with respect to such Defaulting Lender’s LC Exposure L/C Obligations shall be payable to the applicable Issuing Bank L/C Issuer until and to the extent that such LC Exposure is L/C Obligations are reallocated and/or cash collateralizedCash Collateralized; and
(d) so long as such Lender is a Defaulting Lender, no Issuing Bank the Swing Line Lender shall not be required to fund any Swing Line Loan and the L/C Issuer shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied has received assurances satisfactory to it 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 will cover the related exposure and/or cash collateral will be provided by the applicable Borrower Borrowers in accordance with Section 2.19(c2.16(c), and participating interests in any newly made Swing Line Loan or any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.19(c)(i2.16(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 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, as the case may be, shall have entered into arrangements with the Parent Borrower or such Lender, satisfactory to the Issuing Bank to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the Parent Borrower Borrowers, the Swing Line Lender and the Issuing Bank L/C Issuer each agrees, acting in good faith and a commercially reasonable manner, agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the LC Exposure Swing Line Obligations and L/C Obligations of the 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 Credit Loans of the other Revolving Credit Lenders (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 its CommitmentPro 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 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 Available Commitment of such Defaulting Lender pursuant to Section 2.10(a2.12(a);
(b) the Revolving Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether 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, waiver or other modification pursuant to Section 10.029.02); provided, provided that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an any amendment, waiver or other modification requiring the consent of each all Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender or each Lender affected therebyin accordance with the terms hereof;
(c) if any LC Exposure exists at the time such Revolving Lender becomes a Defaulting Lender Lender, then:
(i) all or any part of the Swingline Exposure (other than (x) any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c) and (y) the portion of the Swingline Exposure referred to in clause (b) of the definition thereof) and LC Exposure (other than any portion thereof attributable to unreimbursed 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 shall be reallocated among the nonNon-Defaulting Revolving Lenders in accordance with their respective Commitments Applicable Percentages but only to the extent that the sum of all nonNon-Defaulting Revolving Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the total sum of all nonNon-Defaulting Revolving Lenders’ Revolving Commitments; provided that no reallocation under this clause (i) 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 Revolving Lender as a result of such Non-Defaulting Revolving Lender’s increased exposure following such reallocation;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Parent Borrower shall within one Business Day following notice by the Administrative Agent (A) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (B) second, cash collateralize for the benefit of the Dollar Issuing Bank only such Borrower’s obligations corresponding to Banks the portion of such Defaulting Lender’s Dollar LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) that has not been reallocated in accordance with the procedures set forth in Section 2.04(k2.05(i) for so long as such LC Exposure is outstanding;
(iii) if the Parent Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Parent Borrower shall not be required to pay any participation fees to such Defaulting Lender pursuant to Section 2.04(f2.12(b) with respect to such portion of such Defaulting Lender’s LC Exposure during the period for so long as such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of the non-such Defaulting Lenders Lender is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.10(a2.12(a) and 2.04(f2.12(b) shall be adjusted in accordance with to give effect to such non-Defaulting Lenders’ Commitmentreallocation; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all participation fees payable under Section 2.04(f2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lenders shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend amend, renew or increase extend any Letter of Credit, unless unless, in each case, it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) or LC Exposure Exposure, as applicable, will be 100% fully covered by the Revolving Commitments of the nonNon-Defaulting Revolving Lenders and/or cash collateral will be provided by the applicable Borrower in accordance with Section 2.19(c2.20(c), and participating interests in any newly issued such funded Swingline Loan or increased in any such issued, amended, renewed or extended Letter of Credit shall will be allocated among nonthe Non-Defaulting Revolving Lenders in a manner consistent with Section 2.19(c)(i2.20(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 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, as the case may be, shall have entered into arrangements with the Parent Borrower or such Lender, satisfactory to the Issuing Bank to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, Holdings, the Parent Borrower Borrower, each Swingline Lender and the each applicable Issuing Bank each agrees, acting in good faith and a commercially reasonable manner, agrees that a Defaulting Lender has adequately remedied all matters that caused such the applicable Revolving Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure 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 other Revolving Lenders as the Administrative Agent shall determine may be necessary in order for such Revolving Lender to hold such Revolving Loans in accordance with its CommitmentApplicable Percentage; 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 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 Revolving 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 3 contracts
Sources: Credit Agreement (Vectrus, Inc.), Credit Agreement (Vectrus, Inc.), Credit Agreement (Vectrus, Inc.)
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 Available Commitment of such Defaulting Lender pursuant to Section 2.10(a)2.11;
(b) the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders (including of any Class) have taken or may take any action hereunder (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 10.029.02); provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendmenta waiver, waiver amendment or other modification requiring the consent of each Lender all Lenders or each Lender affected therebythereby (other than with respect to Section 9.02(b)(iii));
(c) if any LC Exposure exists at the time such a Lender becomes a Defaulting Lender then:
(i) all or any part of the such LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Commitments Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s LC Exposure does not exceed the total of all non-Defaulting Lenders’ CommitmentsRevolving Commitments and (y) the conditions set forth in Section 4.02 are satisfied at the time such Lender becomes a Defaulting Lender and its LC Exposure is reallocated;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Parent Borrower shall within one Business Day following notice by the Administrative Agent (which notice shall be promptly delivered by the Administrative Agent upon the failure of the reallocation in clause (i) above to be fully effected) cash collateralize for the benefit of the Issuing Bank only such Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) ), which cash collateral shall be deposited into a cash collateral account in the name of and under the control of the Administrative Agent, in accordance with the procedures set forth in Section 2.04(k2.04(i) for so long as such LC Exposure is outstanding;
(iii) if the Parent Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) abovethis Section 2.19(c), the Parent Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.04(f2.11(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) aboveSection 2.19(c), then the fees payable to the Lenders pursuant to Sections 2.10(aSection 2.11(a) and 2.04(fSection 2.11(b) shall be adjusted in accordance with such non-Defaulting Lenders’ CommitmentApplicable Percentages; andor
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized nor reallocated pursuant to clause (i) or (ii) aboveSection 2.19(c), then, without prejudice to any rights or remedies of any the 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 2.04(f2.11(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank until and to the extent that such LC Exposure is reallocated cash collateralized and/or cash collateralized; andreallocated;
(d) so long as such any Revolving Credit Lender is a Defaulting Lender, no the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that 100% of 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 applicable Borrower in accordance with Section 2.19(c), and participating interests in any such newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.19(c)(i) (and such Defaulting Lender Lenders shall not participate therein). If ; and
(i) if a Bankruptcy Event with respect to a the Parent of any Revolving Credit 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 Revolving Credit Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Revolving Credit 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, as the case may be, Bank shall have entered into arrangements with the Parent Borrower or such Revolving Credit Lender, satisfactory to the Issuing Bank Bank, to defease any risk to it the Issuing Bank in respect of such Revolving Credit Lender hereunder. In the event that the Administrative Agent, the Parent Borrower and the each Issuing Bank each agrees, acting in good faith and a commercially reasonable manner, agrees that a Defaulting Lender has adequately remedied all matters that caused such Revolving Credit Lender to be a Defaulting Lender, then the LC Exposure of the Revolving Credit Lenders shall be readjusted to reflect the inclusion of such Revolving Credit Lender’s Commitment and on such date such Revolving Credit 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 Revolving Credit Lender to hold such Revolving Credit Loans in accordance with its CommitmentApplicable Percentage.
Appears in 3 contracts
Sources: Incremental Facility Amendment (SPRINT Corp), Incremental Facility Amendment (SPRINT Corp), Credit Agreement (SPRINT 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 Available Commitment of such Defaulting Lender pursuant to Section 2.10(a2.12(a);
(b) the Revolving Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether 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, waiver or other modification pursuant to Section 10.029.02); provided, provided that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an any amendment, waiver or other modification requiring the consent of each all Lenders or all Lenders adversely affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender or each Lender affected therebyin accordance with the terms hereof;
(c) if any LC Exposure exists at the time such a Revolving Lender becomes a Defaulting Lender Lender, 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 Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(e) and 2.05(f)) of such Defaulting Lender shall be reallocated among the non-Defaulting Revolver Lenders in accordance with their respective Commitments Applicable Percentages but only to the extent that (x) the sum of all non-Defaulting Revolving Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s LC Exposure does not exceed the total sum of all non-Defaulting Revolving Lenders’ CommitmentsRevolving 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 Commitment; provided that, subject to Section 9.18, 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 ▇▇▇▇▇▇ 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;
(iiiii) if the reallocation described in clause (iii) above cannot, or can only partially, be effected, the Parent Borrower shall within one Business Day following notice by the Administrative Agent cash collateralize for the benefit of the Issuing Bank only such Borrower’s obligations corresponding to Banks the portion of such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) that has not been reallocated in accordance with the procedures set forth in Section 2.04(k2.05(i) for so long as such LC Exposure is outstanding;
(iiiiv) if the Parent Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure is cash collateralized pursuant to clause (iiiii) above, the Parent Borrower shall not be required to pay any participation fees to such Defaulting Lender pursuant to Section 2.04(f2.12(b) with respect to such portion of such Defaulting Lender’s LC Exposure during the period for so long as such Defaulting Lender’s LC Exposure is cash collateralized;
(ivv) if any portion of the LC Exposure of the non-such Defaulting Lenders Lender is reallocated pursuant to clause (iii) above, then the fees payable to the Lenders pursuant to Sections 2.10(a2.12(a) and 2.04(f2.12(b) shall be adjusted in accordance with to give effect to such non-Defaulting Lenders’ Commitmentreallocation;
(vi) [reserved]; and
(vvii) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (iii) or (iiiii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all participation fees payable under Section 2.04(f2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender, no Issuing Bank shall be required to issue, amend amend, renew or increase extend any Letter of Credit, Credit unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% fully covered by the Revolving Commitments of the non-Defaulting Revolving Lenders and/or cash collateral will be provided by the applicable Borrower in accordance with Section 2.19(c2.20(c), and participating interests in any newly issued such issued, amended, renewed or increased extended Letter of Credit shall will be allocated among the non-Defaulting Revolving Lenders in a manner consistent with Section 2.19(c)(i2.20(c)(ii) (and such Defaulting Lender shall not participate therein). If In the event that (i) a Bankruptcy Event with respect to a Revolving Lender Parent of any Lender shall occur following the date hereof Amendment and Restatement Effective Date and for so long as such event Bankruptcy Event shall continue or (ii) the 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 such Issuing Bank shall not be required to issue, amend amend, renew or increase extend any Letter of Credit, unless the such Issuing Bank, as the case may be, Bank shall have entered into arrangements with Holdings and the Parent Borrower or such the applicable Revolving Lender, satisfactory to the such Issuing Bank to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, Holdings, the Parent Borrower and the each applicable Issuing Bank each agrees, acting in good faith and a commercially reasonable manner, agrees that a Defaulting Lender has adequately remedied all matters that caused such the applicable Revolving Lender to be a Defaulting Lender, then the LC 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 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 CommitmentApplicable Percentage; 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 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) fees shall cease to accrue on the unfunded portion of the Available Commitment of such Defaulting Lender pursuant to Section 2.10(a2.12(a);
(b) the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.029.02); provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an any amendment, waiver or other modification requiring the consent of each all Lenders or all Lenders directly affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender or each Lender affected therebyin accordance with the terms hereof;
(c) if any Swingline Exposure or LC Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) shall be reallocated among the non-Defaulting Lenders in accordance with their respective Commitments Applicable Percentages but only to the extent that (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the total of all non-Defaulting Lenders’ CommitmentsRevolving Commitments and (y) no Event of Default has occurred and is continuing at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Parent Borrower Company shall within one (1) Business Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of the each Issuing Bank only such Borrower’s the Borrowers’ obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(k2.06(j) for so long as such LC Exposure is outstanding;
(iii) if the Parent Borrower Company cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Parent Borrower Borrowers shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.04(f2.12(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.10(aSection 2.12(a) and 2.04(fSection 2.12(b) shall be adjusted in accordance with such non-Defaulting Lenders’ CommitmentApplicable Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all letter of credit fees payable under Section 2.04(f2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable relevant Issuing Bank until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless 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 applicable Borrower Company in accordance with Section 2.19(c2.24(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 2.19(c)(i2.24(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event or a Bail-In Action with respect to a Parent of any Lender Parent shall occur following the date hereof Original Effective Date 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 no Issuing Bank shall not 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 Parent Borrower Company or such Lender, satisfactory to the Swingline Lender or such Issuing Bank 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 Parent Borrower Company, the Swingline Lender and the each Issuing Bank each agrees, acting in good faith and a commercially reasonable manner, 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 Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its CommitmentApplicable Percentage.
Appears in 3 contracts
Sources: Credit Agreement (Cimpress N.V.), Credit Agreement (Cimpress N.V.), Credit Agreement (Cimpress N.V.)
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 Commitment of such Defaulting Lender pursuant to Section 2.10(a2.12(a);
(b) the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.02); providedprovided that any waiver, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver amendment or other modification requiring the consent of each Lender all Lenders or each affected Lender which affects such Defaulting Lender disproportionately when compared to the other affected therebyLenders, or increases or extends the Commitment of such Defaulting Lender, shall require the consent of such Defaulting Lender;
(c) if any Swingline Exposure or LC Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) shall be reallocated among the non-Defaulting Lenders in accordance with their respective Commitments Applicable Percentages but only (A) to the extent that 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, (B) to the extent that such reallocation does not cause the Revolving Credit Exposure of any non-Defaulting Lender to exceed such non-Defaulting Lender’s Commitment, and (C) if the conditions set forth in Section 4.02 are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Parent Borrower Company shall within one (1) Business Day following notice by the Administrative Agent (A) first, prepay such Swingline Exposure and (B) second, cash collateralize for the benefit of the Issuing Bank only such Borrowerthe Company’s obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(k2.06(j) for so long as such LC Exposure is outstanding;
(iii) if the Parent Borrower Company cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Parent Borrower Company shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.04(f2.12(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.10(a) and 2.04(fSection 2.12(b) shall be adjusted in accordance with such non-Defaulting Lenders’ CommitmentApplicable Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any the Issuing Bank or any other Lender hereunder, all facility fees that otherwise would have been payable under Section 2.12(a) to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.04(f2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Lender is a Defaulting Lender, (i) no Swingline Lender shall be required to fund any Swingline Loan and the Issuing Bank shall not be required to issue, amend amend, renew or increase extend any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be one hundred percent (100% %) covered by the Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the applicable Borrower Company in accordance with Section 2.19(c)clause (c) above, and participating interests in (ii) Swingline Exposure related to any newly issued made Swingline Loan or increased LC Exposure related to any newly issued, amended, renewed or extended Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.19(c)(iclause (c)(i) above (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 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, as the case may be, shall have entered into arrangements with the Parent Borrower or such Lender, satisfactory to the Issuing Bank to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the Parent Borrower Company, each Swingline Lender and the Issuing Bank each agrees, acting in good faith and a commercially reasonable manner, 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 CommitmentApplicable Percentage.
Appears in 3 contracts
Sources: Credit Agreement (Cabot Corp), Credit Agreement (Cabot Corp), Credit Agreement (Cabot 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 Available Commitment of such Defaulting Lender pursuant to Section 2.10(a2.12(a);
(b) the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.029.02); provided, provided that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of each such Lender or each Lender affected thereby;
(c) if any Swingline Exposure or LC Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) shall be reallocated among the non-Defaulting Lenders in accordance with their respective Commitments Applicable Percentages but only (x) to the extent that the sum of all non-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’ CommitmentsCommitments and (y) if the conditions set forth in Section 4.02 are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Parent Borrower shall within one Business Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of the Issuing Bank only such the Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(k2.06(j) for so long as such LC Exposure is outstanding;
(iii) if the Parent Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Parent Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.04(f2.12(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.10(aSection 2.12(a) and 2.04(fSection 2.12(b) shall be adjusted in accordance with such non-Defaulting Lenders’ CommitmentApplicable Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any the Issuing Bank or any other Lender hereunder, all letter of credit fees payable under Section 2.04(f2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Lender is a Defaulting Lender, no 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 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 applicable Borrower in accordance with Section 2.19(c2.20(c), and participating interests in Swingline Exposure related to any newly made Swingline Loan or LC Exposure related to any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.19(c)(i2.20(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to a Lender Parent of any Lender shall occur following the date hereof and for so long as such event shall continue or (ii) any 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, no Swingline Lender shall 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 Parent Borrower or such Lender, satisfactory to the Swingline Lender or the Issuing Bank 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 Parent Borrower Borrower, the Swingline Lender and the Issuing Bank each agrees, acting in good faith and a commercially reasonable manner, 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 CommitmentApplicable Percentage.
Appears in 3 contracts
Sources: Credit Agreement (Kimball International Inc), Credit Agreement (Kimball Electronics, Inc.), Credit Agreement (Kimball Electronics, 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 Commitment of such Defaulting Lender pursuant to Section 2.10(a2.8(a);
(b) the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.0210.1); provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of each such Lender or each Lender affected thereby;
(c) if any LC Swingline Exposure or L/C Obligation exists at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of the LC Swingline Exposure and L/C Obligation of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Commitments Aggregate Exposure Percentages but only to the extent the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s LC Swingline Exposure and L/C Obligation does not exceed the total of all non-Defaulting Lenders’ Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Parent Borrower shall within one Business Day following notice by the Administrative Agent (x) first, within three Business Days following notice by the Administrative Agent, prepay such Swingline Exposure and (y) second, within three Business Days following notice by the Administrative Agent, cash collateralize for the benefit of the Issuing Bank Lender only such the Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure L/C Obligation (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(k) 8 for so long as such LC Exposure L/C Obligation is outstanding;
(iii) if the Parent Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure L/C Obligation pursuant to clause (ii) aboveSection 2.23(c), the Parent Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.04(f3.3(a) with respect to such Defaulting Lender’s LC Exposure L/C Obligation during the period such Defaulting Lender’s LC Exposure L/C Obligation is cash collateralized;
(iv) if the LC Exposure L/C Obligation of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.10(aSection 2.8(a) and 2.04(fSection 3.3(a) shall be adjusted in accordance with such non-Defaulting Lenders’ CommitmentAggregate Exposure Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure L/C Obligation is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) aboveSection 2.23, then, without prejudice to any rights or remedies of any the Issuing Bank Lender or any other Lender hereunder, all facility fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such L/C Obligation) and letter of credit fees payable under Section 2.04(f3.3(a) with respect to such Defaulting Lender’s LC Exposure L/C Obligation shall be payable to the applicable Issuing Bank Lender until and to the extent that such LC Exposure L/C Obligation is reallocated and/or cash collateralized; and
(d) so long as such Lender is a Defaulting Lender, no the Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Bank 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 Exposure L/C Obligation will be 100% covered by the Commitments of the non-Defaulting Lenders Lenders, including obligations to participate in Swingline Loans and Letters of Credit, and/or cash collateral will be provided by the applicable Borrower in accordance with Section 2.19(c2.23(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 Lenders in a manner consistent with Section 2.19(c)(i2.23(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 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, as the case may be, shall have entered into arrangements with the Parent Borrower or such Lender, satisfactory to the Issuing Bank to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the Parent Borrower Borrower, the Swingline Lender and the Issuing Bank Lender each agrees, acting in good faith and a commercially reasonable manner, agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the LC Swingline Exposure and L/C Obligation 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 CommitmentAggregate Exposure Percentage.
Appears in 3 contracts
Sources: First Lien Credit Agreement (WEB.COM Group, Inc.), First Lien Credit Agreement (WEB.COM Group, Inc.), First Lien Credit Agreement (WEB.COM 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 Available Commitment of such Defaulting Lender pursuant to Section 2.10(a4.1(a);
(b) the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 10.0214.1); provided, provided that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendmentany waiver, waiver amendment or other modification requiring the consent of each Lender all Lenders or each affected Lender affected therebywhich affects such Defaulting Lender differently than each other applicable Lender shall require the consent of such Defaulting Lender;
(c) if any LC Exposure Swingline Loan or Letters of Credit Outstanding exists at the time such a Lender becomes a Defaulting Lender then:
(i) all or any part of the LC Exposure such Swingline Loan and Letters of such Defaulting Lender Credit Outstanding shall be reallocated among the non-Defaulting Lenders in accordance with their respective Commitments Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s LC Swingline Exposure and Letter of Credit Exposure does not exceed the total of all non-Defaulting Lenders’ CommitmentsCommitments and (y) the conditions set forth in Section 7 are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Parent Borrower shall within one Business Day following notice by the Administrative Agent cash collateralize for the benefit of the Issuing Bank only such Borrower’s obligations corresponding to (x) first, prepay such Defaulting Lender’s LC Swingline Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) and (y) second, cash collateralize such Defaulting Lender’s Letter of Credit Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(k5.2(a) for so long as such LC Letter of Credit Exposure is outstanding;
(iii) if the Parent Borrower cash collateralizes any portion of such Defaulting Lender’s LC Letter of Credit Exposure pursuant to clause (ii) abovethis Section 2.14(c), the Parent Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.04(f4.1(b) with respect to such cash collateralized portion of such Defaulting Lender’s LC Letter of Credit Exposure during the period such Defaulting Lender’s LC Letter of Credit Exposure is cash collateralized;
(iv) if to the LC extent the Letter of Credit Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) abovethis Section 2.14(c), then the fees payable to the Lenders pursuant to Sections 2.10(aSection 4.1(a) and 2.04(fSection 4.1(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Commitment; andApplicable Percentages;
(v) if all or to the extent any portion of such Defaulting Lender’s LC Letter of Credit Exposure is neither reallocated nor cash collateralized nor reallocated pursuant to clause (i) or (ii) abovethis Section 2.14(c), then, without prejudice to any rights or remedies of any Issuing Bank the Letter of Credit Issuer or any other Lender hereunder, all fees that would have otherwise been payable to such Defaulting Lender under Section 2.04(f4.1(b) with respect to such Defaulting Lender’s LC portion of such Letter of Credit Exposure shall instead be payable to the applicable Issuing Bank Letter of Credit Issuer until and to the extent that such LC portion of such Defaulting Lender’s Letter of Credit Exposure is reallocated cash collateralized and/or cash collateralized; andreallocated;
(dvi) so long as such any Lender is a Defaulting Lender, no Issuing Bank the Swingline Lender shall not be required to fund any Swingline Loan and the Letter of Credit Issuer 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 applicable Borrower Borrowers in accordance with Section 2.19(c2.14(c), 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 2.19(c)(i2.14(c)(i) (and such Defaulting Lender Lenders shall not participate therein). If ; and
(vii) 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 14.8(b) but excluding Section 14.7) shall, in lieu of being distributed to such Defaulting Lender, be retained by the Administrative Agent in a segregated account and, subject to any applicable requirements of law, be applied at such time or times as may be determined by the Administrative Agent (i) a Bankruptcy Event with respect first, to a Parent the payment of any amounts owing by such Defaulting Lender shall occur following to the date hereof and for so long as such event shall continue or Administrative Agent hereunder, (ii) second, pro rata, to the Issuing Bank has payment of any amounts owing by such Defaulting Lender to the Letter of Credit Issuer or Swingline Lender hereunder, (iii) third, if so determined by the Administrative Agent or requested by a good faith belief that Letter of Credit Issuer or Swingline Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Lender has defaulted participating interest in fulfilling its obligations under one any Swingline Loan 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(iv) fourth, as the case may be, shall have entered into arrangements with the Parent Borrower or such Lender, satisfactory to the Issuing Bank to defease funding of any risk to it Loan in respect of which such Defaulting Lender hereunder. In has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (v) fifth, if so determined by the Administrative Agent and the Borrower, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Revolving Credit Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders, in respect of obligations under this Agreement, a Letter of Credit Issuer or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, such Letter of Credit Issuer or Swingline Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, (vii) seventh, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, and (viii) eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is (x) a prepayment of the principal amount of any Revolving Credit Loans or drawings in respect of Letter of Credits for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 7 are satisfied, such payment shall be applied solely to prepay the Revolving Credit Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Revolving Credit Loans, or reimbursement obligations owed to, any Defaulting Lender; and
(d) in the event that the Administrative Agent, the Parent Borrower Borrower, the Letter of Credit Issuer and the Issuing Bank Swingline Lender each agrees, acting in good faith and a commercially reasonable manner, agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then such Lender shall cease to be a Defaulting Lender, and the LC Swingline Exposure and Letter of Credit Exposure of the Lenders shall be readjusted to reflect the inclusion of such 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 CommitmentApplicable Percentage.
Appears in 3 contracts
Sources: Credit Agreement (Sealy Corp), Credit Agreement (Sealy Corp), Credit Agreement (Sealy 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 Available Commitment of such Defaulting Lender pursuant to Section 2.10(a2.12(a);
(b) the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.029.02); provided, that that, except as otherwise provided in Section 9.02, this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of each Lender all Lenders or each Lender directly affected therebyLender;
(c) if any Swingline Exposure or LC Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender (other than the portion of such Swingline Exposure referred to in clause (b) of the definition thereof) shall be reallocated among the Lenders that are not Defaulting Lenders (the “non-Defaulting Lenders Lenders”) in accordance with their respective Commitments Applicable Percentages but only to the extent that 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;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Parent Borrower shall within one (1) Business Day following notice by the Administrative Agent (x) first, prepay such Defaulting Lender’s Swingline Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) and (y) second, cash collateralize for the benefit of the Issuing Bank only such the Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(k2.06(j) for so long as such LC Exposure is outstanding;
(iii) if the Parent Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Parent Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.04(f2.12(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the non-Defaulting Lenders pursuant to Sections 2.10(aSection 2.12(a) and 2.04(fSection 2.12(b) shall be adjusted in accordance with such non-Defaulting Lenders’ CommitmentApplicable Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any the Issuing Bank or any other non-Defaulting Lender hereunder, all letter of credit fees payable under Section 2.04(f2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Lender is a Defaulting Lender, no 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 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 applicable Borrower in accordance with Section 2.19(c2.21(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 2.19(c)(i2.21(c)(i) (and such Defaulting Lender shall not participate therein). If .
(i) a Bankruptcy Event or a Bail-In Action with respect to a Lender Parent of any Lender shall occur following the date hereof and for so long as such event shall continue or (ii) the Swingline Lender or the Issuing Bank has a reasonable, 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 Parent Borrower or such Lender, satisfactory to the Swingline Lender or the Issuing Bank 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 Parent Borrower Borrower, the Swingline Lender and the Issuing Bank each agrees, acting in good faith and a commercially reasonable manner, 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 CommitmentApplicable Percentage; provided 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 3 contracts
Sources: Credit Agreement (Eagle Materials Inc), Credit Agreement (Eagle Materials Inc), Credit Agreement (Eagle Materials 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 2.10(a2.12(a);
(b) the Commitment Revolving Commitments, LC Exposure and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 10.029.02); provided, provided that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of each such Lender or each Lender affected thereby;
(c) if any Swingline Exposure or LC Exposure exists at the time such a Lender becomes a Defaulting Lender then:
(i) all or any part of the such Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Commitments Applicable Percentages but only to the extent (A) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the total of all non-Defaulting Lenders’ Revolving Commitments, (B) the conditions set forth in 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 (C) such reallocation does not cause the aggregate Revolving Credit Exposure of any Non-Defaulting Lender to exceed such Non-Defaulting Lender’s Revolving Commitment;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Parent Borrower shall within one five Business Day 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 such the Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(k2.06(j) for so long as such LC Exposure is outstanding;
(iii) if the Parent Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Parent Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.04(f2.12(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.10(aSection 2.12(a) and 2.04(fSection 2.12(b) shall be adjusted in accordance with such non-Defaulting Lenders’ CommitmentApplicable Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized nor reallocated pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any the Issuing Bank or any other Lender hereunder, all facility fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Revolving Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.04(f2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank until and to the extent that such LC Exposure is reallocated cash collateralized and/or cash collateralizedreallocated; and
(d) so long as such Lender is a Defaulting Lender, no 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 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 applicable Borrower in accordance with Section 2.19(c2.21(c), 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 2.19(c)(i2.21(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 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 creditcredit (the Lender in such case, an “Affected 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 CreditCredit to the extent such exposure would have been supported by such Affected Lender, unless the Swingline Lender or the Issuing Bank, as the case may be, shall have entered into arrangements with the Parent Borrower or such Affected Lender, satisfactory to the Swingline Lender or the Issuing Bank Bank, as the case may be, to defease any risk to it in respect of such Affected Lender hereunder. In the event that the Administrative Agent, the Parent Borrower Borrower, the Swingline Lender and the Issuing Bank each agrees, acting in good faith and a commercially reasonable manner, agrees that a Defaulting Lender or an Affected 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 CommitmentApplicable Percentage.
Appears in 3 contracts
Sources: Credit Agreement (Tupperware Brands Corp), Credit Agreement (Tupperware Brands Corp), Credit Agreement (Tupperware Brands Corp)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, but without prejudice to Section 2.22, 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 2.10(a2.8(a);
(b) the Revolving Commitment and Revolving Extensions of Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.0210.1); provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of each such Lender or each Lender affected thereby;
(c) if any LC Swingline Exposure or L/C Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of the LC Swingline Exposure and L/C Exposure of such Defaulting Lender (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) shall be reallocated among the non-Defaulting Lenders in accordance with their respective Commitments Revolving Percentages but only to the extent the sum of all non-Defaulting Lenders’ Revolving Extensions of Credit Exposures plus such Defaulting Lender’s LC Swingline Exposure and L/C Exposure does not exceed the total of all non-Defaulting Lenders’ Revolving Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Parent Borrower shall within one Business Day following notice by the Administrative Agent (x) first, prepay such portion of the Swingline Exposure not reallocated and (y) second, cash collateralize for the benefit of the Issuing Bank Lender only such the Borrower’s obligations corresponding to such Defaulting Lender’s LC L/C Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(k) 8 for so long as such LC L/C Exposure is outstanding;
(iii) if the Parent Borrower cash collateralizes any portion of such Defaulting Lender’s LC L/C Exposure pursuant to clause (ii) above, the Parent Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.04(f3.3(a) with respect to such Defaulting Lender’s LC L/C Exposure during the period such Defaulting Lender’s LC L/C Exposure is cash collateralized;
(iv) if the LC L/C Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.10(aSection 2.8(a) and 2.04(fSection 3.3(a) shall be adjusted in accordance with such non-Defaulting Lenders’ CommitmentRevolving Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC L/C Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any the Issuing Bank Lender or any other Lender hereunder, all fees payable under Section 2.04(f3.3(a) with respect to such Defaulting Lender’s LC L/C Exposure shall be payable to the applicable Issuing Bank Lender until and to the extent that such LC L/C Exposure is reallocated and/or cash collateralized; and
(d) so long as such Lender is a Defaulting Lender, no the Swingline Lenders shall not be required to fund any Swingline Loan and the Issuing Bank 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 L/C Exposure will be 100% covered by the Revolving Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the applicable Borrower in accordance with Section 2.19(c2.23(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 Lenders in a manner consistent with Section 2.19(c)(i2.23(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to a Lender Parent of any Lender shall occur following the date hereof and for so long as such event shall continue or (ii) the Swingline Lenders or the Issuing Bank has Lender have 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 Lenders shall not be required to fund any Swingline Loan and the Issuing Bank Lender shall not be required to issue, amend or increase any Letter of Credit, unless the a Swingline Lender or an Issuing BankLender, as the case may be, shall have entered into arrangements with the Parent Borrower or such Lender, satisfactory to such Swingline Lender or such Issuing Lender, as the Issuing Bank case may be, to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the Parent Borrower Borrower, each of the Swingline Lenders and each of the Issuing Bank each agrees, acting in good faith and a commercially reasonable manner, Lender agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the LC Swingline Exposure and L/C 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 CommitmentRevolving Percentage.
Appears in 3 contracts
Sources: First Lien Credit Agreement (Bioventus Inc.), First Lien Credit Agreement (Bioventus Inc.), First Lien Credit Agreement (Bioventus 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 commitment fee payable pursuant to Section 2.12(a) shall cease to accrue on the unfunded portion of the Available Commitment of such Defaulting Lender pursuant to Section 2.10(a)Lender;
(b) the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 10.029.02); provided, provided that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendmentany waiver, waiver amendment or other modification requiring the consent of each Lender all Lenders or each affected Lender which (i) affects such Defaulting Lender differently than other affected therebyLenders (other than as a result of such Defaulting Lender having a greater or lesser Revolving Exposure or Commitment than other affected Lenders) or (ii) would increase the Commitment of the Defaulting Lender, shall require the consent of such Defaulting Lender;
(c) if any Swingline Exposure or LC Exposure exists at the time such a Lender becomes a Defaulting Lender then:
(i) all or any part of the such Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Commitments Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the total of all non-Defaulting Lenders’ CommitmentsCommitments and (y) the conditions set forth in Section 4.02 are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, at the Parent Borrower request of the Administrative Agent, the Borrowers shall within one Business Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of the Issuing Bank only such Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(k2.06(j) for so long as such LC Exposure is outstanding;
(iii) if the Parent Borrower Borrowers cash collateralizes collateralize any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) aboveSection 2.21(c), the Parent Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.04(f2.12(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) aboveSection 2.21(c), then the fees payable to the Lenders pursuant to Sections 2.10(aSection 2.12(a) and 2.04(fSection 2.12(b) shall be adjusted in accordance with such non-Defaulting Lenders’ CommitmentApplicable Percentages; andor
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized nor reallocated pursuant to clause (i) or (ii) aboveSection 2.21(c), then, without prejudice to any rights or remedies of any each Issuing Bank or any other Lender hereunder, all facility fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.04(f2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable each Issuing Bank until and to the extent that such LC Exposure is reallocated cash collateralized and/or cash collateralized; andreallocated;
(d) so long as such any Lender is a Defaulting Lender, no Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless it is satisfied that 100% of 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 applicable Borrower Borrowers in accordance with Section 2.19(c), 2.21(c) or pursuant to Section 2.21(e)(iii) or such other arrangements that are satisfactory to such Issuing Bank; and
(e) in the event 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 2.19(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 on 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 each of Credit, unless the Issuing Bank, as the case may be, shall have entered into arrangements with the Parent Borrower or such Lender, satisfactory to the Issuing Bank to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the Parent Borrower and the Borrower, each Issuing Bank and each agrees, acting in good faith and a commercially reasonable manner, Swingline Lender 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 other 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 CommitmentApplicable Percentage.
Appears in 3 contracts
Sources: Credit Agreement (Cott Corp /Cn/), Credit Agreement (Cott Corp /Cn/), Credit Agreement (Cott Corp /Cn/)
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 Commitment of such Defaulting Lender pursuant to Section 2.10(a2.12(a);
(b) the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.029.02); provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of each such Lender or each Lender affected thereby;
(c) if any Swingline Exposure or LC Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Commitments Applicable Percentages 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;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Parent Borrower shall within one (1) Business Day following notice by the Administrative Agent (x) first, prepay such Defaulting Lender’s Swingline Exposure after giving effect to any partial reallocation pursuant to clause (i) above and (y) second, cash collateralize for the benefit of the Issuing Bank only such the Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(k2.06(j) for so long as such LC Exposure is outstanding;
(iii) if the Parent Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Parent Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.04(f2.12(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.10(a2.12(a) and 2.04(fSection 2.12(b) shall be adjusted in accordance with such non-Defaulting Lenders’ CommitmentApplicable Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any the Issuing Bank or any other Lender hereunder, all letter of credit fees payable under Section 2.04(f2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Lender is a Defaulting Lender, no 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 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 applicable Borrower in accordance with Section 2.19(c2.21(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 2.19(c)(i2.21(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 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 Parent Borrower or such Lender, satisfactory to the Swingline Lender or the Issuing Bank 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 Parent Borrower Borrower, the Swingline Lender and the Issuing Bank each agrees, acting in good faith and a commercially reasonable manner, 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 CommitmentApplicable Percentage.
Appears in 3 contracts
Sources: Credit Agreement (Layne Christensen Co), Credit Agreement (Layne Christensen Co), Credit Agreement (Layne Christensen 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 Available Domestic Revolving Commitment and the Canadian Revolving Subcommitment of such Defaulting Lender pursuant to Section 2.10(a2.12(a);
(b) the Commitment Commitments and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 10.029.02); provided, provided that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendmentany waiver, waiver amendment or other modification requiring the consent of each Lender all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected therebyLenders shall require the consent of such Defaulting Lender;
(c) if any Swingline Exposure, Ex-Im Revolving Exposure or LC Exposure exists at the time such a Lender becomes a Defaulting Lender then:
(i) all or any part of the such Swingline Exposure, Ex-Im Revolving Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders that are Domestic Revolving Lenders, Ex-Im Participants or Canadian Revolving Lenders, as applicable, in accordance with their respective Commitments Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure, Ex-Im Revolving Exposure and LC Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments;Revolving Commitments and (y) the conditions set forth in Section 4.02 are satisfied at such time; and
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Parent applicable Borrower shall within one Business Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and Ex-Im Revolving Exposure and (y) second, cash collateralize for the benefit of the Issuing Bank only such Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(k2.06(j) for so long as such LC Exposure is outstanding;
(iii) if the Parent any Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) aboveSection 2.20(c), the Parent such Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.04(f2.12(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) aboveSection 2.20(c), then the fees payable to the Lenders pursuant to Sections 2.10(a) and 2.04(fSection 2.12(b) shall be adjusted in accordance with such non-Defaulting Lenders’ CommitmentApplicable Percentages; andor
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized nor reallocated pursuant to clause (i) or (ii) aboveSection 2.20(c), then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all facility fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.04(f2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable such Issuing Bank until and to the extent that such LC Exposure is reallocated cash collateralized and/or cash collateralized; andreallocated;
(d) so long as such Lender is a Defaulting Lender, no Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the applicable Borrower in accordance with Section 2.19(c2.20(c), and participating interests in any such newly issued or increased Letter of Credit or newly made Swingline Loan or Ex-Im Revolving Loan shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.19(c)(i2.20(c)(i) (and such Defaulting Lender Lenders shall not participate therein). If ; and
(ie) a Bankruptcy Event with respect to a Parent of any Lender shall occur following in the event and on the date hereof and for so long as such event shall continue or (ii) that each of 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 creditAgents, the Ex-Im Revolving Lender, the Borrowers, the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless the Issuing Bank, as the case may be, shall have entered into arrangements with the Parent Borrower or such Lender, satisfactory to the Issuing Bank to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the Parent Borrower Banks and the Issuing Bank each agrees, acting in good faith and a commercially reasonable manner, Swingline Lenders agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure, Ex-Im Revolving Exposure and LC Exposure of the other Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment Revolving Commitments 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 CommitmentApplicable Percentage.
Appears in 3 contracts
Sources: Credit Agreement (Park Ohio Industries Inc/Oh), Credit Agreement (Park Ohio Industries Inc/Oh), Credit Agreement (Park Ohio 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 Available Commitment of such Defaulting Lender pursuant to Section 2.10(a2.12(a);
(b) the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.028.02); provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, consent, waiver or other modification requiring the consent of each Lender “such Lender” or each Lender directly affected thereby;thereby pursuant to clauses (i), (ii) or (iii) in the first proviso in Section 8.02(b).
(c) if any Swingline Exposure or LC Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Commitments Applicable Percentages 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;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Parent Borrower shall within one three (3) Business Day Days following notice by the Administrative Agent (x) first, the applicable Borrower shall prepay such Swingline Exposure and (y) second, the Company shall cash collateralize for the benefit of the Issuing Bank only such Borrowerthe Company’s obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(k2.06(j) for so long as such LC Exposure is outstanding;
(iii) if the Parent Borrower Company cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Parent Borrower Company shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.04(f2.12(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.10(a) and 2.04(fSection 2.12(b) shall be adjusted in accordance with such non-Defaulting Lenders’ CommitmentApplicable Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any the Issuing Bank or any other Lender hereunder, all facility fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.04(f2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Lender is a Defaulting Lender, no 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 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 applicable Borrower in accordance with Section 2.19(c2.24(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 Lenders in a manner consistent with Section 2.19(c)(i2.24(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 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 Parent Borrower Borrowers or such Lender, satisfactory to the Swingline Lender or the Issuing Bank 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 Parent Borrower Company, the Swingline Lender and the Issuing Bank each agrees, acting in good faith and a commercially reasonable manner, 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 CommitmentApplicable Percentage.
Appears in 3 contracts
Sources: Credit Agreement (Masco Corp /De/), Credit Agreement (Masco Corp /De/), Credit Agreement (Masco Corp /De/)
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 Available Commitment Revolving Credit Commitments of such Defaulting Lender pursuant to Section 2.10(a2.09(a);
(b) the Commitment Commitment, Outstanding Amount of Term Loans and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, the Required Lenders, Required Pro Rata Facility Lenders or the Required Revolving Credit Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.0210.01); providedprovided that any waiver, that this amendment or modification of a type described in clause (a), (b) shall not or (c) of the first proviso in Section 10.01 that would apply to the vote of a Commitments or Loan Obligations owing to such Defaulting Lender in the case of an amendment, waiver or other modification requiring shall require the consent of each such Defaulting Lender with respect to the effectiveness of such waiver, amendment or each Lender affected therebymodification with respect to the Commitments or Loan Obligations owing to such Defaulting Lender;
(c) if any LC L/C Exposure exists at the time such a Lender under the Revolving Credit Facility becomes a Defaulting Lender then:
(i) all or any part of the LC L/C Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Commitments Applicable Percentages but only to the extent the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s LC L/C Exposure does not exceed the total of all non-Defaulting Lenders’ relevant Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Parent Borrower shall within one three (3) Business Day Days following notice by the Administrative Agent cash collateralize Agent, Cash Collateralize for the benefit of the Issuing Bank L/C Issuer only such the Borrower’s obligations corresponding to such Defaulting Lender’s LC L/C Exposure and (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(k2.03(f) for so long as such LC L/C Exposure is outstandingoutstanding and;
(iii) if the Parent Borrower cash collateralizes Cash Collateralizes any portion of such Defaulting Lender’s LC L/C Exposure pursuant to clause (ii) above, the Parent Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.04(f2.03(h) with respect to such Defaulting Lender’s LC L/C Exposure during the period such Defaulting Lender’s LC L/C Exposure is cash collateralizedCash Collateralized;
(iv) if the LC Exposure L/C Exposures of the non-Defaulting Lenders is reallocated are increased pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.10(a2.09(a) and 2.04(f2.03(h) shall be adjusted in accordance with such non-Defaulting Lenders’ Commitment; andApplicable Percentages;
(v) if all or any portion of such Defaulting Lender’s LC L/C Exposure is neither reallocated nor cash collateralized Cash Collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank the L/C Issuer or any other Lender hereunder, all letter of credit fees payable under Section 2.04(f2.03(h) with respect to such portion of such Defaulting Lender’s LC L/C Exposure shall be payable to the applicable Issuing Bank L/C Issuer until and to the extent that such LC L/C Exposure is reallocated and/or cash collateralizedCash Collateralized; and
(vi) subject to Section 10.23, no reallocation pursuant to this Section 2.16 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.
(d) so long as such Lender is a Defaulting LenderLender under the Revolving Credit Facility, no Issuing Bank the relevant L/C Issuer shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied has received assurances satisfactory to it 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 will cover the related exposure and/or cash collateral Cash Collateral will be provided by the applicable Borrower in accordance with Section 2.19(c2.16(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 2.19(c)(i2.16(c)(i) (and such Defaulting Lender shall not participate therein). If .
(ie) 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, as the case may be, shall have entered into arrangements with the Parent Borrower or such Lender, satisfactory to the Issuing Bank to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the Parent Borrower and the Issuing Bank relevant L/C Issuer each agrees, acting in good faith and a commercially reasonable manner, 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 relevant L/C Exposures 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 Revolving Credit Loans in accordance with its CommitmentApplicable Percentage.
Appears in 3 contracts
Sources: Credit Agreement (Wyndham Hotels & Resorts, Inc.), Credit Agreement (Wyndham Hotels & Resorts, Inc.), Credit Agreement (Wyndham 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:
(a) fees shall cease to accrue on the unfunded portion of the Available Core Currency Commitment and Individual Currency Commitments of such Defaulting Lender pursuant to Section 2.10(a3.3(a), (b) and (c);
(b) the Core Currency Commitment, the Individual Currency Commitments, the Swing Line Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 10.0211.1); providedprovided that any waiver, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver amendment or other modification requiring the consent of each Lender all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected therebyLenders shall require the consent of such Defaulting Lender;
(c) if any SL/LC Credit Exposure exists at the time such a Lender becomes a Defaulting Lender then:
(i) all or any part of the such SL/LC Credit Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Commitments Core Currency Commitment Percentages but only to the extent (A) the sum of the aggregate outstanding principal amount of the Core Currency Loans of all non-Defaulting Lenders’ Revolving Lenders plus, without duplication, the aggregate SL/LC Credit Exposures plus Exposure of such non-Defaulting Lender’s LC Exposure Lenders does not exceed the total of all non-Defaulting Lenders’ Commitments;Lenders and (B) the conditions set forth in clauses (i), (ii) and (iii) of Section 2.1(a) are satisfied at such time; and
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Parent Borrower Borrowers shall within one Business Day following notice by the Administrative Agent (A) first, prepay such SL/LC Credit Exposure with respect to any existing Swing Line Loan and (B) second, cash collateralize for the benefit of the Issuing Bank only such Borrower’s obligations corresponding to such Defaulting Lender’s SL/LC Credit Exposure with respect to any existing Letter of Credit (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(k) same manner as required by Article 9 for so long as such LC Exposure is outstanding;
(iii) if the Parent Borrower Borrowers cash collateralizes collateralize any portion of such Defaulting Lender’s SL/LC Credit Exposure pursuant to clause (ii) abovethis Section 2.12(c), the Parent Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.04(f3.3(b) with respect to such Defaulting Lender’s SL/LC Credit Exposure during the period such Defaulting Lender’s SL/LC Credit Exposure is cash collateralized;; or
(iv) if the SL/LC Credit Exposure of the a non-Defaulting Lenders Lender is reallocated pursuant to clause (i) abovethis Section 2.12(c), then the fees payable to the Lenders pursuant to Sections 2.10(aSection 3.3(a) and 2.04(fSection 3.3(b) shall be adjusted in accordance with such non-Defaulting Lenders’ CommitmentLenders Core Currency Commitment Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies The Administrative Agent shall promptly notify the Lenders of any Issuing Bank or any other Lender hereunder, all fees payable under reallocation described in this Section 2.04(f) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and2.12(c).
(d) so long as such any Lender is a Defaulting Lender, no the Swing Line Lender shall not be required to fund any Swing Line Loan and the Issuing Bank shall not be required to issue, amend amend, extend 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 Core Currency Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the applicable Borrower Parent or the Borrowers in accordance with Section 2.19(c2.12(c), and participating interests in any such newly issued or increased Letter of Credit or newly made Swing Line Loan shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.19(c)(i2.12(c)(i) (and such Defaulting Lender Lenders shall not participate therein). If ; and
(e) any amount payable to such Defaulting Lender hereunder by (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 2.5(h) but excluding Section 3.8) shall, in lieu of being distributed to such Defaulting Lender, be retained by the Administrative Agent in a separate 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) a Bankruptcy Event with respect first, to a Parent the payment of any amounts owing by such Defaulting Lender shall occur following to the date hereof and for so long as such event shall continue or Administrative Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to the Issuing Bank has a good faith belief that any or Swing Line Lender has defaulted in fulfilling its obligations under one hereunder, (iii) third, if so determined by the Administrative Agent or more other agreements in which such Lender commits to extend credit, requested by the Issuing Bank shall not be required to issueor Swing Line Lender, amend held in such account as cash collateral for future funding obligations of the Defaulting Lender in respect of any existing or increase future participating interest in any Swing Line Loan or Letter of Credit, unless the Issuing Bank(iv) fourth, as the case may be, shall have entered into arrangements with the Parent Borrower or such Lender, satisfactory to the Issuing Bank to defease funding of any risk to it Loan in respect of which such Defaulting Lender hereunder. In the event that 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 Parent Borrower Administrative Agent and the Parent, held in such account as cash collateral for future funding obligations of the Defaulting Lender in respect of any Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders or the Issuing Bank each agreesor Swing Line Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, acting Issuing Bank or Swing Line Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, (vii) seventh, to the payment of any amounts owing to any Borrower as a result of any judgment of a court of competent jurisdiction obtained by such Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, and (viii) eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is (x) a prepayment of the principal amount of any Loans or reimbursement obligations in good faith and a commercially reasonable manner, that respect of LC Disbursements which a Defaulting Lender has adequately remedied funded its participation obligations and (y) made at a time when the conditions set forth in Article 6 are satisfied, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all matters that caused such Lender non-Defaulting Lenders pro rata prior to be a being applied to the prepayment of any Loans, or reimbursement obligations owed to, any 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 Commitment.
Appears in 2 contracts
Sources: Credit Agreement (Tiffany & Co), Credit Agreement (Tiffany & 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 Available Commitment of such Defaulting Lender pursuant to Section 2.10(a2.12(a);
(b) the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 10.029.02); providedprovided that any waiver, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver amendment or other modification requiring the consent of each Lender all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected therebyLenders shall require the consent of such Defaulting Lender;
(c) if any Swingline Exposure or LC Exposure exists at the time such a Lender becomes a Defaulting Lender then:
(i) all or any part of the such Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Commitments Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the total of all non-Defaulting Lenders’ CommitmentsCommitments and (y) the conditions set forth in Section 4.02 are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Parent Borrower Company shall within one (1) Business Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of the Issuing Bank only such Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(k2.06(j) for so long as such LC Exposure is outstanding;
(iii) if the Parent Borrower Company cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) aboveSection 2.24(c), the Parent Borrower Company shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.04(f2.12(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) aboveSection 2.24(c), then the fees payable to the Lenders pursuant to Sections 2.10(a) and 2.04(fSection 2.12(b) shall be adjusted in accordance with such non-Defaulting Lenders’ CommitmentApplicable Percentages; andor
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized nor reallocated pursuant to clause (i) or (ii) aboveSection 2.24(c), then, without prejudice to any rights or remedies of any the Issuing Bank or any other Lender hereunder, all letter of credit fees payable under Section 2.04(f2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank until and to the extent that such LC Exposure is reallocated cash collateralized and/or cash collateralizedreallocated; and
(d) so long as such any Lender is a Defaulting Lender, no 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 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 applicable Borrower Company in accordance with Section 2.19(c2.24(c), 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 2.19(c)(i2.24(c)(i) (and such Defaulting Lender 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, as the case may be, shall have entered into arrangements with the Parent Borrower or such Lender, satisfactory to the Issuing Bank to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the Parent Borrower and Company, the Issuing Bank and the Swingline Lender each agrees, acting in good faith and a commercially reasonable manner, 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 CommitmentApplicable Percentage.
Appears in 2 contracts
Sources: Credit Agreement (Dentsply International Inc /De/), Credit Agreement (Dentsply International Inc /De/)
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 Available Commitment of such Defaulting Lender pursuant to Section 2.10(a)2.11;
(b) the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 10.029.02); provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendmenta waiver, waiver amendment or other modification requiring the consent of each Lender all Lenders or each Lender affected therebythereby (other than with respect to Section 9.02(b)(iii));
(c) if any LC Exposure exists at the time such a Lender becomes a Defaulting Lender then:
(i) all or any part of the such LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Commitments Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s LC Exposure does not exceed the total of all non-Defaulting Lenders’ CommitmentsRevolving Commitments and (y) the conditions set forth in Section 4.02 are satisfied at the time such Lender becomes a Defaulting Lender and its LC Exposure is reallocated;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Parent Borrower shall within one Business Day following notice by the Administrative Agent (which notice shall be promptly delivered by the Administrative Agent upon the failure of the reallocation in clause (i) above to be fully effected) cash collateralize for the benefit of the Issuing Bank only such Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) ), which cash collateral shall be deposited into a cash collateral account in the name of and under the control of the Administrative Agent, in accordance with the procedures set forth in Section 2.04(k2.04(i) for so long as such LC Exposure is outstanding;
(iii) if the Parent Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) abovethis Section 2.19(c), the Parent Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.04(f2.11(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) aboveSection 2.19(c), then the fees payable to the Lenders pursuant to Sections 2.10(aSection 2.11(a) and 2.04(fSection 2.11(b) shall be adjusted in accordance with such non-Defaulting Lenders’ CommitmentApplicable Percentages; andor
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized nor reallocated pursuant to clause (i) or (ii) aboveSection 2.19(c), then, without prejudice to any rights or remedies of any the 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 2.04(f2.11(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank until and to the extent that such LC Exposure is reallocated cash collateralized and/or cash collateralized; andreallocated;
(d) so long as such any Revolving Lender is a Defaulting Lender, no the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that 100% of 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 applicable Borrower in accordance with Section 2.19(c), and participating interests in any such newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.19(c)(i) (and such Defaulting Lender Lenders shall not participate therein). If ; and
(i) if a Bankruptcy Event with respect to a the Parent of any Revolving 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 Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Revolving 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, as the case may be, Bank shall have entered into arrangements with the Parent Borrower or such Revolving Lender, satisfactory to the Issuing Bank Bank, to defease any risk to it the Issuing Bank in respect of such Revolving Lender hereunder. In the event that the Administrative Agent, the Parent Borrower and the each Issuing Bank each agrees, acting in good faith and a commercially reasonable manner, 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 the Revolving Lenders shall be readjusted to reflect the inclusion of such Revolving Lender’s Commitment and on such date such Revolving Lender shall purchase at par such of the Revolving Credit Loans of the other Revolving Lenders (other than Competitive Loans) as the Administrative Agent shall determine may be necessary in order for such Revolving Lender to hold such Revolving Credit Loans in accordance with its CommitmentApplicable Percentage.
Appears in 2 contracts
Sources: Amendment Agreement (Sprint Nextel Corp), Credit Agreement (Sprint Nextel 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 Lenderapply:
(ai) fees Facility Fees shall cease to accrue on the unfunded unused portion of the Available Commitment of such Defaulting Lender pursuant to Section 2.10(a);Lender’s Commitment.
(bii) the The Commitment and Revolving Outstanding Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or other requisite Lenders have taken or may take any action hereunder (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 10.028.2); providedprovided that any waiver, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver amendment or other modification requiring the consent of each Lender all Lenders or each affected Lender shall require the consent of such Defaulting Lender (in such case, to the extent such Defaulting Lender is an affected thereby;Lender).
(ciii) if any LC Exposure exists at the time such Lender becomes Unless a Defaulting Lender then:
(i) Default or an Unmatured Default shall have occurred and be continuing, all or any part of the such Defaulting Lender’s Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Commitments Pro Rata Shares of the Aggregate Commitment, but only to the extent the sum of all non-Defaulting Lenders’ Revolving Outstanding Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments;.
(iiiv) if If the LC Exposure of such Defaulting Lender is reallocated pursuant to subparagraph (iii) above, then the LC Participation Fees payable to the Lenders pursuant to Section 2.8.2 shall be adjusted in accordance with such reallocation.
(v) If the reallocation described in clause (iii) above cannot, or can only partially, be effected, the Parent each Borrower shall within one Business Day following notice by the Administrative Agent (x) first, prepay the portion of the Swingline Exposure attributable to Swingline Loans made to such Borrower and (y) second, cash collateralize for the benefit of the Issuing Bank only Banks such Borrower’s obligations corresponding to the portion of such Defaulting Lender’s LC Exposure that is attributable to Letters of Credit issued for the account of such Borrower (in each case, as determined after giving effect to any partial reallocation pursuant to clause (iiii) above) in accordance with the procedures set forth in Section 2.04(k2.6(i) for so long as such LC Exposure is outstanding;.
(iiivi) if the Parent If a Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (iiv) above, the Parent such Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.04(f) 2.8.2 with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;.
(ivvii) if The Agent shall adjust the allocation of payments hereunder to ensure that a Defaulting Lender does not receive payment in respect of any Loan or LC Exposure Disbursement that it did not fund or to reflect any of the non-Defaulting Lenders is reallocated pursuant actions or adjustments referred to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.10(a) and 2.04(f) shall be adjusted in accordance with such non-Defaulting Lenders’ Commitment; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all fees payable under this Section 2.04(f) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Lender is a Defaulting Lender, no Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the applicable Borrower in accordance with Section 2.19(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 2.19(c)(i) (and such Defaulting Lender shall not participate therein)2.24. If (i) a Bankruptcy Event with respect to a Parent the 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 any Issuing Bank has shall have 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 or increase any Letter of Credit, unless the Swingline Lender or such Issuing Bank, as the case may be, shall have entered into arrangements with the Parent applicable Borrower or such Lender, Lender reasonably satisfactory to the Swingline Lender or such Issuing Bank Bank, as the case may be, to defease any mitigate the risk to it in respect of such Lender hereunderfailing to satisfy its participating interest therein. In the event that the Administrative Agent, each Borrower, the Parent Borrower Swingline Lender and the each Issuing Bank each agrees, acting in good faith and a commercially reasonable manner, 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 (other than Competitive Loans and Swingline Loans) and 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 in accordance with its CommitmentPro Rata Share. Except as expressly provided in this Section 2.24 in connection with the obligations of the Swingline Lender or the Issuing Banks, the obligation of each Lender, Issuing Bank and Swingline Lender to fund the full amount of its Commitment and to make Loans, Advances and other extensions of credit hereunder shall not be released or diminished in any respect by any other Lender becoming a Defaulting Lender.
Appears in 2 contracts
Sources: Credit Agreement (Ameren Energy Generating Co), Credit Agreement (Ameren Energy Generating 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 Available Commitment of such Defaulting Lender pursuant to Section 2.10(a2.11(a);
(b) the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 10.029.02); provided, provided that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendmentany waiver, waiver amendment or other modification requiring the consent of each Lender all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected therebyLenders, or any waiver, amendment or modification that has the effect of increasing the Commitment of such Defaulting Lender, shall require the consent of such Defaulting Lender;
(c) if any Swingline Exposure or LC Exposure exists at the time such a Lender becomes a Defaulting Lender then:
(i) all or any part of the such Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Commitments Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments;Commitments (it being understood that in no event shall any non-Defaulting Lender’s Revolving Credit Exposure exceed such Lender’s Commitment as a result of such reallocation) and (y) the conditions set forth in Section 4.02 are satisfied at such time; and
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Parent Borrower Borrowers or the Account Parties shall within one Business Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of the Issuing Bank only such Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(k2.05(j) for so long as such LC Exposure is outstanding;
(iii) if the Parent Borrower Borrowers or the Account Parties cash collateralizes collateralize any portion of such Defaulting Lender’s LC Exposure pursuant to clause this paragraph (ii) abovec), the Parent Borrower Borrowers shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.04(f2.11(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause this paragraph (i) abovec), then the fees payable to the Lenders pursuant to Sections 2.10(aSection 2.11(a) and 2.04(fSection 2.11(b) shall be adjusted in accordance with such non-Defaulting Lenders’ CommitmentApplicable Percentages; andor
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized nor reallocated pursuant to clause this paragraph (i) or (ii) abovec), then, without prejudice to any rights or remedies of any the Issuing Bank or any other Lender hereunder, all facility fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and Letter of Credit fees payable under Section 2.04(f2.11(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank until and to the extent that such LC Exposure is reallocated cash collateralized and/or cash collateralized; andreallocated;
(d) so long as such any Lender is a Defaulting Lender, no 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 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 applicable Borrower Borrowers or the Account Parties in accordance with Section 2.19(c2.21(c), 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 2.19(c)(i2.21(c)(i) (and such Defaulting Lender Lenders shall not participate therein). If ; 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(c), but excluding Section 2.18(b)) shall, in lieu of being distributed to such Defaulting Lender, be retained by the Administrative Agent in a segregated account and, subject to any applicable requirements of law, be applied at such time or times as may be determined by the Administrative Agent (i) a Bankruptcy Event with respect first, to a Parent the payment of any amounts owing by such Defaulting Lender shall occur following to the date hereof and for so long as such event shall continue or Administrative Agent hereunder, (ii) second, pro rata, to the Issuing Bank has a good faith belief that payment of any amounts owing by such Defaulting 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, as the case may be, shall have entered into arrangements with the Parent Borrower or such Lender, satisfactory to the Issuing Bank or Swingline Lender hereunder, (iii) third, to defease the funding of any risk to it Loan or the funding or cash collateralization of any participating interest in any Swingline Loan or Letter of Credit in respect of which such Defaulting Lender hereunderhas 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 or the Account Parties, 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, the Account Parties or the Lenders as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers, the Account Parties 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 LC Disbursements which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 4.02 are satisfied, such payment shall 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 Parent Borrower and Borrowers, the Account Parties, the Issuing Bank and the Swingline Lender each agrees, acting in good faith and a commercially reasonable manner, 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 CommitmentApplicable Percentage.
Appears in 2 contracts
Sources: Credit Agreement (J C Penney Co Inc), Credit Agreement (J C Penney Co 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) (i) commitment fees shall cease to accrue on the unfunded portion of the Available Revolving Commitment of such Defaulting Lender pursuant to Section 2.10(a2.11(a) and (ii) commitment fees shall cease to accrue on the unfunded portion of the 364-Day Commitment of such Defaulting Lender pursuant to Section 2.11(b);
(b) the Revolving Commitment and Revolving Credit Exposure (in the case of a Defaulting Lender that is a Revolving Lender) or the 364-Day Commitment and 364-Day Exposure (in the case of a Defaulting Lender that is a 364-Day Lender) of such Defaulting Lender shall not be included in determining whether 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, waiver or other modification pursuant to Section 10.029.02); provided, provided that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an only any amendment, waiver or other modification requiring the consent of each all Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender or each Lender affected therebyin accordance with the terms hereof;
(c) if any LC Exposure exists at the time such Revolving Lender becomes a Defaulting Lender Lender, 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 Defaulting Lender shall have funded its participation as contemplated by Sections 2.04(e) and 2.04(f)) of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Commitments Applicable Percentages but only to the extent that (A) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s LC Exposure does not exceed the total sum of all non-Defaulting Lenders’ CommitmentsRevolving Commitments and (B) at the time of such reallocation, no Event of Default shall have occurred and be continuing; provided that, subject to Section 9.17, 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;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Parent Borrower shall within one Business Day following notice by the Administrative Agent cash collateralize for the benefit of the Issuing Bank only such Borrower’s obligations corresponding to Banks the portion of such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) that has not been reallocated in accordance with the procedures set forth in Section 2.04(k2.04(i) for so long as such LC Exposure is outstanding;
(iii) if the Parent Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Parent Borrower shall not be required to pay any participation fees to such Defaulting Lender pursuant to Section 2.04(f2.11(b) with respect to such portion of such Defaulting Lender’s LC Exposure during the period for so long as such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of the non-such Defaulting Lenders Lender is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.10(a2.11(a) and 2.04(f2.11(b) shall be adjusted in accordance with to give effect to such non-Defaulting Lenders’ Commitmentreallocation; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all participation fees payable under Section 2.04(f2.11(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and;
(d) so long as such Revolving Lender is a Defaulting Lender, no Issuing Bank shall be required to issue, amend amend, renew or increase extend any Letter of Credit, unless unless, in each case, it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure Exposure, as applicable, will be 100% fully covered by the Revolving Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the applicable Borrower in accordance with Section 2.19(c), and participating interests in any newly issued such issued, amended, renewed or increased extended Letter of Credit shall will be allocated among the non-Defaulting Lenders in a manner consistent with Section 2.19(c)(i) (and such Defaulting Lender 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 (whether voluntary or mandatory, at maturity, pursuant to Article VII or otherwise, and including any amounts made available to the Administrative Agent by that Defaulting Lender pursuant to Section 9.08), shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by that Defaulting Lender to the Administrative Agent hereunder; second, in the case of a Defaulting Lender that is a Revolving Lender, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to each Issuing Bank; third, to cash collateralize the Issuing Lenders’ LC Exposure with respect to such Defaulting Lender in accordance with Section 2.04(i); fourth, as the Borrower may request (so long as no Default or Event of Default has occurred and is continuing), 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 in accordance with the terms hereof; fifth, in the case of a Default Lender that is a Revolving Lender, 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 (x) satisfy obligations of such Defaulting Lender to fund Loans under this 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 2.04(i); sixth, to the payment of any amounts owing to the Lenders or the Issuing Banks as a result of any judgment of a court of competent jurisdiction obtained by any Lender or such Issuing Bank 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 such payment is a payment of the principal amount of any Loans or LC Disbursements and such Lender is a Defaulting Lender under clause (a) of the definition thereof, such payment shall be applied solely to pay the relevant Loans of, and LC Disbursements owed to, the relevant non-Defaulting Lenders on a pro rata basis prior to being applied pursuant to Section 2.04(i). If 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 2.04(i) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto. In the event that (i) a Bankruptcy Event with respect to a Revolving Lender Parent of any Lender shall occur following the date hereof and for so long as such event Bankruptcy Event shall continue or (ii) the 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 such Issuing Bank shall not be required to issue, amend amend, renew or increase extend any Letter of Credit, unless the such Issuing Bank, as the case may beapplicable, shall have entered into arrangements with the Parent Borrower or such the applicable Revolving Lender, satisfactory to the such Issuing Bank Bank, as applicable, to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the Parent Borrower and the each Issuing Bank each agrees, acting in good faith and agrees that a commercially reasonable manner, Revolving Lender that is a Defaulting Lender has adequately remedied all matters that caused such Revolving Lender to be a Defaulting Lender, then the LC Exposure of the Revolving Lenders shall be readjusted to reflect the inclusion of such Revolving Lender’s Revolving Commitment and on such date date, subject to clause (e) of this Section 2.19, such Revolving Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders as the Administrative Agent shall determine may be necessary in order for such Revolving Lender to hold such Revolving Loans in accordance with its CommitmentApplicable Percentage.
Appears in 2 contracts
Sources: Credit Agreement (Crown Castle International Corp), Credit Agreement (Crown Castle International 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 Available Commitment of such Defaulting Lender pursuant to Section 2.10(a2.12(a);
(b) the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.029.02); provided, that that, except as otherwise provided in Section 9.02, this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of each such Lender or each Lender directly affected thereby;
(c) if any Swingline Exposure or LC Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Commitments Applicable Percentages but only to the extent that 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;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Parent Borrower shall within one (1) Business Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of the relevant Issuing Bank Banks only such the Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(k2.06(j) for so long as such LC Exposure is outstanding;
(iii) if the Parent Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Parent Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.04(f2.12(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.10(aSection 2.12(a) and 2.04(fSection 2.12(b) shall be adjusted in accordance with such non-Defaulting Lenders’ CommitmentApplicable Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all letter of credit fees payable under Section 2.04(f2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable relevant Issuing Bank Banks until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless 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 applicable Borrower in accordance with Section 2.19(c2.21(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 2.19(c)(i2.21(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to a Lender Parent of any Lender shall occur following the date hereof and for so long as such event shall continue or (ii) the 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 or increase any Letter of Credit, unless the Swingline Lender or such Issuing Bank, as the case may be, shall have entered into arrangements with the Parent Borrower or such Lender, satisfactory to the Swingline Lender or such Issuing Bank 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 Parent Borrower Borrower, the Swingline Lender and the each Issuing Bank each agrees, acting in good faith and a commercially reasonable manner, 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 CommitmentApplicable Percentage.
Appears in 2 contracts
Sources: Credit Agreement (Dean Foods Co), Credit Agreement (Dean Foods 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 Available Revolving Commitment of such Defaulting Lender pursuant to Section 2.10(a2.12(a);
(b) the Revolving Commitment and Revolving Extensions of Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.029.02); provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of each such Lender or each Lender affected thereby;
(c) if any Swingline Exposure or LC Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Commitments Applicable Percentages but only to the extent the sum of all non-Defaulting Lenders’ Revolving Extensions of Credit Exposures plus such Defaulting Lender’s Swingline Exposure and 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 effected, the Parent Borrower shall within one Business Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of the Issuing Bank only such the Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(k2.05(j) for so long as such LC Exposure is outstanding;
(iii) if the Parent Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Parent Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.04(f2.12(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.10(aSection 2.12(a) and 2.04(fSection 2.12(b) shall be adjusted in accordance with such non-Defaulting Lenders’ CommitmentRevolving Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any the Issuing Bank or any other Lender hereunder, all fees payable under Section 2.04(f2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Lender is a Defaulting Lender, no 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 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 applicable Borrower in accordance with Section 2.19(c2.21(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 Lenders in a manner consistent with Section 2.19(c)(i2.21(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to a Lender Parent of any Lender shall occur following the date hereof and for so long as such event shall continue or (ii) the 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 Parent Borrower or such Lender, satisfactory to the Swingline Lender or the Issuing Bank 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 Parent Borrower Borrower, the Swingline Lender and the Issuing Bank each agrees, acting in good faith and a commercially reasonable manner, 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 CommitmentRevolving Percentage.
Appears in 2 contracts
Sources: Credit Agreement (United Surgical Partners International Inc), Credit Agreement (Shoreline Real Estate Partnership, LLP)
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 Commitment of such Defaulting Lender pursuant to Section 2.10(a2.11(a);
(b) the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 10.029.02); provided, provided that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendmentany waiver, waiver amendment or other modification requiring the consent of each Lender all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected therebyLenders shall require the consent of such Defaulting Lender;
(c) if any Swingline Exposure or LC Exposure exists at the time such a Lender becomes a Defaulting Lender then:
(i) all or any part of the such Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Commitments Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments;Commitments and (y) the conditions set forth in Section 4.02 are satisfied at such time; and
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Parent Borrower shall within one Business Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of the Issuing Bank only such the Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(k2.05(j) for so long as such LC Exposure is outstanding;
(iii) if the Parent Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) aboveSection 2.19(c), the Parent Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.04(f2.11(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) aboveSection 2.19(c), then the fees payable to the Lenders pursuant to Sections 2.10(aSection 2.11(a) and 2.04(fSection 2.11(b) shall be adjusted in accordance with such non-Defaulting Lenders’ CommitmentApplicable Percentages; andor
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized nor reallocated pursuant to clause (i) or (ii) aboveSection 2.19(c), then, without prejudice to any rights or remedies of any the Issuing Bank or any other Lender hereunder, all Unused Fees that otherwise would have been payable to such Defaulting Lender under Section 2.11(a) (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.04(f2.11(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank until and to the extent that such LC Exposure is reallocated cash collateralized and/or cash collateralizedreallocated; and
(d) so long as such any Lender is a Defaulting Lender, no 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 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 applicable Borrower in accordance with Section 2.19(c), 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 2.19(c)(i) (and such Defaulting Lender Lenders shall not participate therein). If (i) a Bankruptcy Event with respect to a Lender Parent of any Lender shall occur following the date hereof and for so long as such event shall continue or (ii) continue, the Issuing Bank has a good faith belief that Swingline Lender shall not be required to fund any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, 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 Parent Borrower or such Lender, satisfactory to the Swingline Lender or the Issuing Bank 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 Parent Borrower and Borrower, the Issuing Bank and the Swingline Lender each agrees, acting in good faith and a commercially reasonable manner, 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 (i) 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 CommitmentApplicable Percentage and (ii) reimburse the other Lenders for any amounts that would be owing to such Lenders under Section 2.15 if such purchase were a repayment by the Borrower.
Appears in 2 contracts
Sources: Loan Agreement (Cheesecake Factory Inc), Loan Agreement (Cheesecake Factory 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 shall cease to accrue on the unfunded portion of the Available Commitment of such Defaulting Lender pursuant to Section 2.10(a);
(b) the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Majority Lenders or Required Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.029.02); provided, that that, except as otherwise provided in Section 9.02, this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of each such Lender or each Lender directly affected thereby;
(c) if any Swingline Exposure or LC Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure or LC Exposure (other than (A) the portion of such Swingline Exposure referred to in clause (b) of the definition of such term and (B) any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(d) or (e)) of such Defaulting Lender shall be reallocated (effective as of the date such Lender becomes a Defaulting Lender) among the non-Defaulting Lenders in accordance with their respective Commitments 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 that (X) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s LC Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments, (Y) after giving effect to any such reallocation, no non-Defaulting Lender’s Credit Exposure shall exceed such non-Defaulting Lender’s Commitment and (Z) no Default or Event of Default has occurred and is continuing at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Parent Borrower shall shall, within one three (3) Business Day Days following written notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second cash collateralize collateralize, for the benefit of the applicable Issuing Bank only such Banks, the Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(k2.04(j) for so long as such Defaulting Lender’s LC Exposure is outstanding;
(iii) if the Parent Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Parent Borrower shall not be required to pay any participation fees to such Defaulting Lender pursuant to Section 2.04(f2.10(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections Section 2.10(a) and 2.04(fSection 2.10(b) shall be adjusted in accordance with such non-Defaulting Lenders’ CommitmentApplicable Percentages after giving effect to such reallocation; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all participation fees payable under Section 2.04(f2.10(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank Banks, ratably based on the portion of such LC Exposure attributable to Letters of Credit issued by each such Issuing Bank, until and to the extent that such LC Exposure is reallocated and/or cash collateralizedcollateralized pursuant to clause (i) or (ii) above; and
(d) so long as such Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless 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 applicable Borrower in accordance with Section 2.19(c2.18(c), and Swingline Exposure related to any such newly made Swingline Loan 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 2.19(c)(i2.18(c)(i) (and such Defaulting Lender shall not participate therein). If .
(i) a Bankruptcy Event or a Bail-In Action with respect to a Lender Parent of any Lender shall occur following the date hereof and for so long as such event shall continue or (ii) the any Swingline Lender or Issuing Bank has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless the Swingline Lender or such Issuing Bank shall have entered into arrangements with the Borrower or such Lender, satisfactory to the Swingline Lender or Issuing Bank, as the case may be, shall have entered into arrangements with the Parent Borrower or such Lender, satisfactory to the Issuing Bank to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the Parent Borrower Borrower, the Swingline Lender and the each Issuing Bank each agrees, acting agree in good faith and a commercially reasonable manner, writing 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 Exposures of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment 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 CommitmentApplicable Percentage. The rights and remedies against, and with respect to, a Defaulting Lender under this Section 2.18 are in addition to, and cumulative and not in limitation of, all other rights and remedies that the Administrative Agent and each Lender, each Issuing Bank, the Borrower or any other Loan Party may at any time have against, or with respect to, such Defaulting Lender.
Appears in 2 contracts
Sources: Credit Agreement, Credit Agreement (Southwestern Energy Co)
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 pursuant to Section 2.11(a) on the unfunded portion unused amount of the Available Revolving Commitment of such Defaulting Lender pursuant to Section 2.10(a)Lender;
(b) the Revolving Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether 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, waiver or other modification pursuant to Section 10.029.02); provided, provided that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an any amendment, waiver or other modification requiring the consent of each all Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender or each Lender affected therebyin accordance with the terms hereof;
(c) if any Swingline Exposure or LC Exposure exists at the time such Revolving Lender becomes a Defaulting Lender then:
(i) all or any part so long as no Event of Default has occurred and is continuing, the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the nonNon-Defaulting Lenders in accordance with their respective Commitments Applicable Percentages but only to the extent that the sum of all nonNon-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the total sum of all nonNon-Defaulting Lenders’ Revolving Commitments;
(ii) if (x) an Event of Default has occurred and is continuing or (y) the reallocation described in clause (i) above cannot, or can only partially, be effected, the Parent Borrower Borrowers shall within one Business Day following notice by the Administrative Agent (A) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (B) second, cash collateralize for the benefit of the Issuing Bank only such Borrower’s obligations corresponding to Banks the portion of such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) that has not been reallocated in accordance with the procedures set forth in Section 2.04(k2.06(j) for so long as such LC Exposure is outstanding;
(iii) if the Parent Borrower Borrowers cash collateralizes collateralize any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Parent Borrower Borrowers shall not be required to pay any participation fees to such Defaulting Lender pursuant to Section 2.04(f2.11(b) with respect to such portion of such Defaulting Lender’s LC Exposure during the period for so long as such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of the non-such Defaulting Lenders Lender is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.10(a2.11(a) and 2.04(f2.11(b) shall be adjusted in accordance with to give effect to such non-Defaulting Lenders’ Commitmentreallocation; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment utilized by such LC Exposure) and participation fees payable under Section 2.04(f2.11(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend amend, renew or increase extend any Letter of Credit, unless in each case it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure or LC Exposure Exposure, as applicable, will be 100% fully covered by the Revolving Commitments of the nonNon-Defaulting Lenders and/or cash collateral will be provided by the applicable Borrower Borrowers in accordance with Section 2.19(c), and, so long as no Event of Default has occurred and is continuing, participating interests in any newly issued such funded Swingline Loan or increased in any such issued, amended, reviewed or extended Letter of Credit shall will be allocated among nonthe Non-Defaulting Lenders in a manner consistent with Section 2.19(c)(i) (and such Defaulting Lender shall not participate therein). If In the event that (ia) a Bankruptcy Event with respect to a Revolving Lender Parent of any Lender shall occur have occurred following the date hereof and for so long as such event Bankruptcy Event shall continue or (iib) 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 Issuing Bank Swingline Lender shall not be required to fund any Swingline Loan, and no Issuing Bank shall be required to issue, amend amend, renew or increase 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 Parent Borrower Borrowers or such Lender, Revolving Lender satisfactory to the Swingline Lender or such Issuing Bank 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 Parent Borrower Borrowers, the Swingline Lender and the each Issuing Bank each agrees, acting in good faith and a commercially reasonable manner, 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 Revolving 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 Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Revolving Lender to hold such Loans in accordance with its CommitmentApplicable Percentage.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Freeport McMoran Copper & Gold Inc), Revolving Credit Agreement (Freeport McMoran Copper & Gold 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 2.10(a2.12(a);
(b) the Commitment Revolving Commitments, LC Exposure and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 10.029.02); provided, provided that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of each such Lender or each Lender affected thereby;
(c) if any Swingline Exposure or LC Exposure exists at the time such a Lender becomes a Defaulting Lender then:
(i) all or any part of the such Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Commitments Applicable Percentages but only to the extent (A) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the total of all non-Defaulting Lenders’ Revolving Commitments, (B) the conditions set forth in 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 (C) such reallocation does not cause the aggregate Revolving Credit Exposure of any Non-Defaulting Lender to exceed such Non-Defaulting Lender’s Revolving Commitment;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Parent Borrower shall within one five Business Day 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 such the Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(k2.06(j) for so long as such LC Exposure is outstanding;
(iii) if the Parent Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Parent Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.04(f2.12(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.10(aSection 2.12(a) and 2.04(fSection 2.12(b) shall be adjusted in accordance with such non-Defaulting Lenders’ CommitmentApplicable Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized nor reallocated pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any the Issuing Bank or any other Lender hereunder, all facility fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Revolving Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.04(f2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank until and to the extent that such LC Exposure is reallocated cash collateralized and/or cash collateralizedreallocated; and
(d) so long as such Lender is a Defaulting Lender, no 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 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 applicable Borrower in accordance with Section 2.19(c2.20(c), 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 2.19(c)(i2.20(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 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 creditcredit (the Lender in such case, an “Affected 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 CreditCredit to the extent such exposure would have been supported by such Affected Lender, unless the Swingline Lender or the Issuing Bank, as the case may be, shall have entered into arrangements with the Parent Borrower or such Affected Lender, satisfactory to the Swingline Lender or the Issuing Bank Bank, as the case may be, to defease any risk to it in respect of such Affected Lender hereunder. In the event that the Administrative Agent, the Parent Borrower Borrower, the Swingline Lender and the Issuing Bank each agrees, acting in good faith and a commercially reasonable manner, agrees that a Defaulting Lender or an Affected 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 CommitmentApplicable Percentage.
Appears in 2 contracts
Sources: Credit Agreement (Tupperware Brands Corp), Credit Agreement (Tupperware Brands Corp)
Defaulting Lenders. Notwithstanding any provision of this Credit 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 Facility Fees shall cease to accrue on the unfunded portion of the Available Revolving Commitment of such Defaulting Lender pursuant to Section 2.10(a3.4(a);
(b) the Revolving Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Credit Document (including any consent to any amendment, waiver or other modification pursuant to Section 10.0211.6); provided, provided that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an any amendment, waiver or other modification requiring the consent of each all Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 11.6, require the consent of such Defaulting Lender or each Lender affected therebyin accordance with the terms hereof;
(c) if any LC Swing Line Exposure or LOC Obligation exists at the time such Revolving Lender becomes a Defaulting Lender then:
(i) all or any part of the LC Swing Line Exposure and LOC Obligations of such Defaulting Lender shall be reallocated among the nonNon-Defaulting Lenders in accordance with their respective Commitments Revolving Loan Commitment Percentages but only to the extent that the sum of all nonNon-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s LC Swing Line Exposure and LOC Obligations does not exceed the total sum of all nonNon-Defaulting Lenders’ Revolving Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Parent Borrower shall shall, within one Business Day following notice by the Administrative Agent (A) first, prepay the portion of such Defaulting Lender’s Swing Line Exposure that has not been reallocated and (B) second, cash collateralize for the benefit of the Issuing Bank only such Borrower’s obligations corresponding to Lenders the portion of such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(k) LOC Obligations that has not been reallocated for so long as such LC Exposure is outstandingLOC Obligations are outstanding by depositing cash in such amount in an account with the Administrative Agent, in the name of the Administrative Agent and for the benefit of the Lenders;
(iii) if the Parent Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure LOC Obligations pursuant to clause (ii) above, the Parent Borrower shall not be required to pay any fees Letter of Credit Fees to such Defaulting Lender pursuant to Section 2.04(f3.4(b) with respect to such Defaulting Lender’s LC Exposure during the period portion of such Defaulting Lender’s LC Exposure is LOC Obligations for so long as such Defaulting Lender’s LOC Obligations are cash collateralized;
(iv) if the LC Exposure any portion of the non-LOC Obligations of such Defaulting Lenders Lender is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.10(a3.4(a) and 2.04(f3.4(b) shall be adjusted in accordance with to give effect to such non-Defaulting Lenders’ Commitmentreallocation; and
(v) if all or any portion of such Defaulting Lender’s LC LOC Obligations or Swing Line Exposure is neither or any portion thereof are not repaid or reallocated nor or cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank Lender or any other 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 utilized by such LOC Obligations and Swing Line Exposure) and Letter of Credit Fees payable under Section 2.04(f3.4(b) with respect to such Defaulting Lender’s LC Exposure LOC Obligations shall be payable to the applicable relevant Issuing Bank Lender and the Swing Line Lender, as its interests may appear, until and to the extent that such LC LOC Obligation and Swing Line Exposure is reallocated and/or cash collateralized; and
collateralized or repaid. In the event that (dx) so long as such Lender is a Defaulting Lender, no Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the applicable Borrower event described in accordance with Section 2.19(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 2.19(c)(i9.1(f) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to a Revolving Lender Parent of any Lender shall occur have occurred following the date hereof Restatement Effective Date and for so long as such event Event of Default under Section 9.1(f) shall continue or (iiy) the any Issuing Bank 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 no Issuing Bank Lender shall not be required to issue, amend amend, renew or increase extend any Letter of Credit, Credit unless the such Issuing Bank, as the case may be, Lender shall have entered into arrangements with the Parent Borrower or such Lender, Revolving Lender satisfactory to the such Issuing Bank Lender to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the Parent Borrower Borrower, the Swing Line Lender and the Issuing Bank each agrees, acting in good faith and a commercially reasonable manner, Lenders agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then (i) the LC Swing Line Exposure and LOC Obligation of the Revolving Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and Revolving Commitment, (ii) on such date such Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swing Line Loans) as the Administrative Agent shall determine may be necessary in order for such Revolving Lender to hold such Loans in accordance with its CommitmentRevolving Loan Commitment Percentage and (iii) any and all cash collateral provided by the Borrower in respect of such Defaulting Lender’s Swing Line Exposure or LOC Obligations in accordance with Section 2.6(c)(ii) above shall be immediately released to the Borrower and the Administrative Agent and the Lenders shall promptly execute such documents as may be necessary to give effect to such release.
Appears in 2 contracts
Sources: Credit Agreement (Quest Diagnostics Inc), Credit Agreement (Quest Diagnostics 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 Commitment of such Defaulting Lender pursuant to Section 2.10(a2.12(a);
(b) the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.02); provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of each such Lender or each Lender affected thereby;
(c) if any Swingline Exposure or LC Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Commitments Applicable Percentages 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;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Parent Borrower Company shall within one Business Day following notice by the U.S. Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of the each Issuing Bank only such Borrowerthe Company’s obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(k) for so long as such LC Exposure is outstanding2.05(j);
(iii) if the Parent Borrower Company cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Parent Borrower Company shall not be required to pay any fees to or for the benefit of such Defaulting Lender pursuant to Section 2.04(f2.12(c) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.10(aSection 2.12(a) and 2.04(fSection 2.12(c) shall be adjusted in accordance with such non-Defaulting Lenders’ CommitmentApplicable Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any the applicable Issuing Bank or any other Lender hereunder, all facility fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.04(f2.12(c) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and;
(d) so long as such Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless 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 applicable Borrower Company in accordance with Section 2.19(c2.22(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 Lenders in a manner consistent with Section 2.19(c)(i2.22(c)(i) (and such Defaulting Lender shall not participate therein); and
(e) any payment of principal, interest, fees or other amounts received by either Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article VII or otherwise) or received by either Agent from a Defaulting Lender pursuant to Section 10.08 shall be applied at such time or times as may be determined by such Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Agents hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to the Issuing Banks or Swingline Lender hereunder; third, to be held as cash collateral for such Defaulting Lender’s LC Exposure other than any portion of such LC Exposure that has been reallocated to other Lenders or cash collateralized in accordance with the terms hereof; fourth, as the Borrower may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Applicable Agent; fifth, if so determined by the U.S. Administrative Agent and the Company, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) cash collateralize the future funding obligations of such Defaulting Lender of any participation in any Letter of Credit or Swingline Loan; sixth, to the payment of any amounts owing to the Lenders, the Issuing Banks or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, any Issuing Bank or the Swingline Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default exists, to the payment of any amounts owing to the Company as a result of any judgment of a court of competent jurisdiction obtained by the Company 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 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 LC Disbursements and Swingline Loans are held by the Lenders pro rata in accordance with the Commitments hereunder without giving effect to Section 2.22(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 2.22(e) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto. If (i) a Bankruptcy Event with respect to a Parent of any Lender shall occur following the date hereof Effective Date 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 no Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless the Swingline Lender or the applicable Issuing Bank, as the case may be, shall have entered into arrangements with the Parent Borrower Company or such Lender, satisfactory to the Swingline Lender or such Issuing Bank Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative each Agent, the Parent Borrower Company, the Swingline Lender and the each Issuing Bank each agrees, acting in good faith and a commercially reasonable manner, 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 CommitmentApplicable Percentage.
Appears in 2 contracts
Sources: Credit Agreement (Sysco Corp), Credit Agreement (Sysco 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 Available Revolving Commitment of such Defaulting Lender pursuant to Section 2.10(a2.12(a);
(b) the Revolving Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether 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, waiver or other modification pursuant to Section 10.029.02); provided, provided that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an any amendment, waiver or other modification requiring the consent of each all Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender or each Lender affected therebyin accordance with the terms hereof;
(c) if any Swingline Exposure or LC Exposure exists at the time such Revolving Lender becomes a Defaulting Lender Lender, then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the nonNon-Defaulting Lenders in accordance with their respective Commitments Applicable Percentages but only to the extent that the sum of all nonNon-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the total sum of all nonNon-Defaulting Lenders’ Revolving Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Parent Borrower shall within one Business Day following notice by the Administrative Agent (A) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (B) second, cash collateralize for the benefit of the Issuing Bank only such Borrower’s obligations corresponding to Banks the portion of such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) that has not been reallocated in accordance with the procedures set forth in Section 2.04(k2.05(i) for so long as such LC Exposure is outstanding;
(iii) if the Parent Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Parent Borrower shall not be required to pay any participation fees to such Defaulting Lender pursuant to Section 2.04(f2.12(b) with respect to such portion of such Defaulting Lender’s LC Exposure during the period for so long as such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of the non-such Defaulting Lenders Lender is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.10(a2.12(a) and 2.04(f2.12(b) shall be adjusted in accordance with to give effect to such non-Defaulting Lenders’ Commitment; andreallocation;
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment utilized by such LC Exposure) and participation fees payable under Section 2.04(f2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(dvi) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend amend, renew or increase extend any Letter of Credit, unless in each case it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure or LC Exposure Exposure, as applicable, will be 100% fully covered by the Revolving Commitments of the nonNon-Defaulting Lenders and/or cash collateral will be provided by the applicable Borrower in accordance with Section 2.19(c2.20(c), and participating interests in any newly issued such funded Swingline Loan or increased in any such issued, amended, reviewed or extended Letter of Credit shall will be allocated among nonthe Non-Defaulting Lenders in a manner consistent with Section 2.19(c)(i2.20(c)(i) (and such Defaulting Lender shall not participate therein). If In the event that (ix) a Bankruptcy Event with respect to a Revolving Lender Parent of any Lender shall occur have occurred following the date hereof and for so long as such event Bankruptcy Event shall continue or (iiy) 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 Issuing Bank Swingline Lender shall not be required to fund any Swingline Loan, and no Issuing Bank shall be required to issue, amend amend, renew or increase extend any Letter of Credit, unless the Swingline Lender or such Issuing Bank, as the case may be, shall have entered into arrangements with Parent and the Parent Borrower or such Lender, Revolving Lender satisfactory to the Swingline Lender or such Issuing Bank 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, Parent, the Parent Borrower Borrower, the Swingline Lender and the each Issuing Bank each agrees, acting in good faith and a commercially reasonable manner, 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 Revolving 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 Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Revolving Lender to hold such Loans in accordance with its CommitmentApplicable Percentage.
Appears in 2 contracts
Sources: Credit Agreement (PetroLogistics LP), Credit Agreement (PetroLogistics 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 portion of the Available Commitment of such Defaulting Lender pursuant to Section 2.10(a2.11(a);
(b) the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.029.02); provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of each such Lender or each Lender affected thereby;
(c) if any Swingline Exposure or LC Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Commitments Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the total of all non-Defaulting Lenders’ CommitmentsCommitments and (y) the conditions set forth in Section 4.02(b) are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Parent Borrower Company shall within one Business Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of the Issuing Bank only such Borrowerthe Company’s obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(k2.05(j) for so long as such LC Exposure is outstanding;
(iii) if the Parent Borrower Company cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Parent Borrower Company shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.04(f2.11(b)(i) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.10(aSection 2.11(a) and 2.04(fSection 2.11(b)(i) shall be adjusted in accordance with such non-Defaulting Lenders’ CommitmentApplicable Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any the Issuing Bank or any other Lender hereunder, all letter of credit fees payable under Section 2.04(f2.11(b)(i) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Lender is a Defaulting Lender, no Swingline Lender shall 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 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 applicable Borrower Company in accordance with Section 2.19(c2.22(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 Lenders in a manner consistent with Section 2.19(c)(i2.22(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 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 Parent Borrower or such Lender, reasonably satisfactory to the Swingline Lender or the Issuing Bank 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 Parent Borrower Company, the Swingline Lender and the Issuing Bank each agrees, acting in good faith and a commercially reasonable manner, 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 CommitmentApplicable Percentage.
Appears in 2 contracts
Sources: Credit Agreement (Universal Forest Products Inc), Credit Agreement (Universal Forest Products 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 Commitment of such Defaulting Lender pursuant to Section 2.10(a)2.13;
(b) the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, the Required Lenders or the Supermajority Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.029.02); provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of each Lender all Lenders or each Lender affected therebyLender;
(c) [reserved];
(d) if any LC Swingline Exposure exists at the time such a Lender becomes a Defaulting Lender then:
(i) all or any part of the LC Swingline Exposure of such Defaulting Lender (other than, in the case of a Defaulting Lender that is a Swingline Lender, the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) shall be reallocated among the non-Defaulting Lenders in accordance with their respective Commitments Applicable Percentages but only to the extent the sum of all that such reallocation does not, as to any non-Defaulting Lenders’ Revolving Credit Exposures plus Lender, cause such non-Defaulting Lender’s LC Revolving Credit Exposure does not to exceed the total of all non-Defaulting Lenders’ Commitments;its Commitment; and
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Parent Borrower shall within one Business Day following notice by the Administrative Agent, prepay such Swingline Exposure;
(e) any payment of principal, interest, fees or other amounts received by the Administrative Agent cash collateralize for the benefit account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article VI or otherwise, and including any amounts made available to the Administrative Agent by such Defaulting Lender pursuant to Section 9.08), shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder or under the other Credit Documents; second, to the payment of amounts owing by such Defaulting Lender to 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 such 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 pro rata in order to satisfy potential future obligations of such Defaulting Lender to fund Loans and other obligations under this Agreement, in accordance with this Section; fifth, to the payment of any amounts owing to the Lenders (including, for the avoidance of doubt, the Swingline Lender) as a result of any judgment of a court of competent jurisdiction obtained by any Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement or under the other Credit Documents; 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 such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement or under the other Credit Documents; and seventh, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) the Borrower makes a payment of the Issuing Bank only principal amount of any Loans in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made at a time when the conditions set forth in Section 4.02 were satisfied or waived, then such payment shall be applied solely to pay the relevant Loans of the relevant non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of such Defaulting Lender until such time as all Loans and funded and unfunded participations in the Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) Swingline Loans are held by the Lenders pro rata in accordance with the procedures set forth in Commitments without giving effect to clause (d) below. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 2.04(k) for so long as such LC Exposure is outstanding;
(iii) if the Parent Borrower cash collateralizes any portion of shall be deemed paid to and redirected by such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Parent Borrower shall not be required to pay any fees to such Defaulting and each Lender pursuant to Section 2.04(f) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.10(a) and 2.04(f) shall be adjusted in accordance with such non-Defaulting Lenders’ Commitmentirrevocably consents hereto; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all fees payable under Section 2.04(f) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(df) so long as such Lender is a Defaulting Lender, no Issuing Bank the Swingline Lender shall not be required to issue, amend or increase fund any Letter of CreditSwingline Loan, 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 applicable Borrower in accordance with Section 2.19(c), and participating interests in Swingline Exposure related to any newly issued or increased Letter of Credit made Swingline Loan shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.19(c)(i2.20(d)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event or a Bail-In Action with respect to a Lender Parent of any Lender shall occur following the date hereof Effective Date and for so long as such event shall continue or (ii) the Issuing Bank Swingline 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 Bank Swingline Lender shall not be required to issue, amend or increase fund any Letter of Credit, Swingline Loan unless the Issuing Bank, as the case may be, Swingline Lender shall have entered into arrangements with the Parent Borrower or such Lender, satisfactory to the Issuing Bank Swingline Lender to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the Parent Borrower Swingline Lender and the Issuing Bank Borrower each agrees, acting in good faith and a commercially reasonable manner, agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the LC Swingline Exposure of the Lenders shall be readjusted to reflect the inclusion of such 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 CommitmentApplicable Percentage. 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.
Appears in 2 contracts
Sources: Credit Agreement (Robinhood Markets, Inc.), Credit Agreement (Robinhood Markets, 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 Commitment of such Defaulting Lender pursuant to Section 2.10(a2.12(a);
(b) the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.029.02); provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of each such Lender or each Lender affected thereby;
(c) if any Swingline Exposure or LC Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Commitments Applicable Percentages 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;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Parent Borrower Company shall within one (1) Business Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of the relevant Issuing Bank Banks only such Borrower’s the Borrowers’ obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(k2.06(j) for so long as such LC Exposure is outstanding;
(iii) if the Parent Borrower Company cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Parent Borrower Borrowers shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.04(f2.12(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.10(aSection 2.12(a) and 2.04(fSection 2.12(b) shall be adjusted in accordance with such non-Defaulting Lenders’ CommitmentApplicable Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all letter of credit fees payable under Section 2.04(f2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable relevant Issuing Bank Banks until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Lender is a Defaulting Lender, no the Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Bank Banks 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 applicable Borrower Company in accordance with Section 2.19(c2.24(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 2.19(c)(i2.24(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 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 no Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless the Swingline Lender or such Issuing Bank, as the case may be, shall have entered into arrangements with the Parent Borrower Company or such Lender, satisfactory to the Swingline Lender or such Issuing Bank 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 Parent Borrower Company, the Swingline Lender and the each Issuing Bank each agrees, acting in good faith and a commercially reasonable manner, 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 CommitmentApplicable Percentage.
Appears in 2 contracts
Sources: Credit Agreement (Newmarket Corp), Credit Agreement (Newmarket 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 Available Revolving Commitment of such Defaulting Lender pursuant to Section 2.10(a2.12(a);
(b) the Revolving Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Senior Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 10.029.02); provided, provided that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an any amendment, waiver or other modification requiring the consent of each all Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender or each Lender affected therebyin accordance with the terms hereof;
(c) if any Swingline Exposure or LC Exposure exists at the time such Revolving Lender becomes a Defaulting Lender then:
(i) all or the Swingline Exposure (other than any part of the portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(e)) and LC Exposure of such Defaulting Lender (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(e) and 2.05(g)) shall be reallocated among the nonNon-Defaulting Lenders in accordance with their respective Commitments Applicable Percentages but only to the extent that the sum of all nonNon-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the total sum of all nonNon-Defaulting Lenders’ Revolving Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Parent Borrower shall within one Business Day following notice by the Administrative Agent (A) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (B) second, cash collateralize for the benefit of the Issuing Bank only such Borrower’s obligations corresponding to Banks the portion of such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) that has not been reallocated in accordance with the procedures set forth in Section 2.04(k2.05(j) for so long as such LC Exposure is outstanding;
(iii) if the Parent Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Parent Borrower shall not be required to pay any participation fees to such Defaulting Lender pursuant to Section 2.04(f2.12(b) with respect to such portion of such Defaulting Lender’s LC Exposure during the period for so long as such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of the non-such Defaulting Lenders Lender is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.10(a) and 2.04(fSection 2.12(b) shall be adjusted in accordance with to give effect to such non-Defaulting Lenders’ Commitmentreallocation; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all participation fees payable under Section 2.04(f2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend amend, renew or increase extend any Letter of Credit, unless unless, in each case, it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure or LC Exposure Exposure, as applicable, will be 100% fully covered by the Revolving Commitments of the nonNon-Defaulting Lenders and/or cash collateral will be provided by the applicable Borrower in accordance with Section 2.19(c2.22(c), and participating interests in any newly issued such funded Swingline Loan or increased in any such issued, amended, renewed or extended Letter of Credit shall will be allocated among nonthe Non-Defaulting Lenders in a manner consistent with Section 2.19(c)(i2.22(c)(i) (and such Defaulting Lender shall not participate therein). If In the event that (ix) a Bankruptcy Event with respect to a Revolving Lender Parent of any Lender shall occur have occurred following the date hereof and for so long as such event Bankruptcy Event shall continue or (iiy) 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 such Issuing Bank shall not be required to issue, amend amend, renew or increase 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 Parent Borrower or such Lender, the applicable Revolving Lender satisfactory to the Swingline Lender or such Issuing Bank 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 Parent Borrower Borrower, the Swingline Lender and the each Issuing Bank each agrees, acting in good faith and a commercially reasonable manner, 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 Revolving 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 Revolving Lenders as the Administrative Agent shall determine may be necessary in order for such Revolving Lender to hold such Loans in accordance with its CommitmentApplicable Percentage.
Appears in 2 contracts
Sources: Credit Agreement (Rite Aid Corp), Credit Agreement (Rite Aid 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 Available Commitment of such Defaulting Lender pursuant to Section 2.10(a2.12(a);
(b) the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.029.02); provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of each such Lender or each Lender directly affected thereby;
(c) if any Swingline Exposure or LC Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Commitments Applicable Percentages 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;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Parent Borrower Company shall within one (1) Business Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of the Issuing Bank only such Borrower’s the Borrowers’ obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(k2.06(j) for so long as such LC Exposure is outstanding;
(iii) if the Parent Borrower Company cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Parent Borrower Borrowers shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.04(f2.12(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.10(a) and 2.04(fSection 2.12(b) shall be adjusted in accordance with such non-Defaulting Lenders’ CommitmentApplicable Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any the Issuing Bank or any other Lender hereunder, all facility fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.04(f2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Lender is a Defaulting Lender, no 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 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 applicable Borrower Company in accordance with Section 2.19(c2.24(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 2.19(c)(i2.24(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 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 Parent Borrower Company or such Lender, satisfactory to the Swingline Lender or the Issuing Bank 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 Parent Borrower Company, the Swingline Lender and the Issuing Bank each agrees, acting in good faith and a commercially reasonable manner, 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 CommitmentApplicable Percentage.
Appears in 2 contracts
Sources: Credit Agreement (Fiserv Inc), Credit Agreement (Fiserv 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 Commitment of such Defaulting Lender pursuant to Section 2.10(a)2.12;
(b) the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, the Majority in Interest of any Class or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 10.029.02); provided, provided that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendmentany waiver, waiver amendment or other modification requiring the consent of each Lender all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected therebyLenders shall require the consent of such Defaulting Lender;
(c) if any Swingline Exposure or LC Exposure exists at the time such a Lender becomes a Defaulting Lender then:
(i) all or any part of the such Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Commitments Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the total of all non-Defaulting Lenders’ CommitmentsCommitments and (y) the conditions set forth in Section 4.02 are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Parent Borrower shall within one five Business Day 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 such Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(k2.05(i) for so long as such LC Exposure is outstanding;
(iii) if the Parent Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) aboveSection 2.22(c), the Parent Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.04(f2.12(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) aboveSection 2.22(c), then the fees payable to the Lenders pursuant to Sections 2.10(a2.12(a) and 2.04(f(b) shall be adjusted in accordance with such non-Defaulting Lenders’ CommitmentApplicable Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized nor reallocated pursuant to clause (i) or (ii) aboveSection 2.22(c), then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and fees payable under Section 2.04(f2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Banks ratably in accordance with the portion of such LC Exposure attributable to each Issuing Bank until and to the extent that such LC Exposure is reallocated cash collateralized and/or cash collateralizedreallocated; and
(d) so long as such any Lender is a Defaulting Lender, no Swingline Lender shall be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the applicable Borrower in accordance with Section 2.19(c2.22(c), 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 2.19(c)(i2.22(c)(i) (and such Defaulting Lender 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, as the case may be, shall have entered into arrangements with the Parent Borrower or such Lender, satisfactory to the Issuing Bank to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the Parent Borrower and the Borrower, each Issuing Bank and each agrees, acting in good faith and a commercially reasonable manner, 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 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 CommitmentApplicable Percentage.
Appears in 2 contracts
Sources: Credit Agreement (Skype S.a r.l.), Credit Agreement (Skype S.a r.l.)
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 Commitment of such Defaulting Lender pursuant to Section 2.10(a2.12(a);
(b) the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.029.02); provided, that that, except as otherwise provided in Section 9.02, this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of each such Lender or each Lender directly affected thereby;
(c) if any Swingline Exposure or LC Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Commitments Applicable Percentages but only to the extent that 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;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Parent Borrower shall within one (1) Business Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of the Issuing Bank only such the Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(k2.06(j) for so long as such LC Exposure is outstanding;
(iii) if the Parent Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Parent Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.04(f2.12(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.10(aSection 2.12(a) and 2.04(fSection 2.12(b) shall be adjusted in accordance with such non-Defaulting Lenders’ CommitmentApplicable Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any the Issuing Bank or any other Lender hereunder, all letter of credit fees payable under Section 2.04(f2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Lender is a Defaulting Lender, no 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 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 applicable Borrower in accordance with Section 2.19(c2.22(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 2.19(c)(i2.22(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to a Lender Parent of any Lender shall occur following the date hereof and for so long as such event shall continue or (ii) the 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 Parent Borrower or such Lender, satisfactory to the Swingline Lender or the Issuing Bank 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 Parent Borrower Borrower, the Swingline Lender and the Issuing Bank each agrees, acting in good faith and a commercially reasonable manner, 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 CommitmentApplicable Percentage.
Appears in 2 contracts
Sources: Credit Agreement (TimkenSteel Corp), Credit Agreement (Newport 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 Available Commitment of such Defaulting Lender pursuant to Section 2.10(a2.12(a);
(b) the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.029.02); provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification pursuant to Section 9.02(b) requiring the consent of each such Lender or each Lender directly affected thereby;
(c) if any Swingline Exposure or LC Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Commitments Applicable Percentages 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;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Parent Borrower Company shall within one three (3) Business Day 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 such Borrower’s the Borrowers’ obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(k2.06(j) for so long as such LC Exposure is outstanding;
(iii) if the Parent Borrower Company cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Parent Borrower Borrowers shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.04(f2.12(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.10(a2.12(a) and 2.04(f2.12(b) shall be adjusted in accordance with such non-Defaulting Lenders’ CommitmentApplicable Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any the Issuing Bank or any other Lender hereunder, all letter of credit fees payable under Section 2.04(f2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Lender is a Defaulting Lender, no 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 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 applicable Borrower Company in accordance with Section 2.19(c2.24(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 2.19(c)(i2.24(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Lender 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 any of its funding 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 Parent Borrower Company or such Lender, satisfactory to the Swingline Lender or the Issuing Bank 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 Parent Borrower Company, the Swingline Lender and the Issuing Bank each agrees, acting in good faith and a commercially reasonable manner, 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 CommitmentApplicable Percentage.
Appears in 2 contracts
Sources: Credit Agreement (MATERION Corp), Credit Agreement (MATERION 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 Available Revolving Commitment of such Defaulting Lender pursuant to Section 2.10(a2.8(a);
(b) the Revolving Commitment and Revolving Extensions of Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders, the Required Revolving Lenders or the Majority Facility Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.0210.1); provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of each such Lender or each Lender affected thereby;
(c) if any LC Swingline Exposure or L/C Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of the LC Swingline Exposure and L/C Exposure of such Defaulting Lender (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) shall be reallocated among the non-Defaulting Lenders in accordance with their respective Commitments Revolving Percentages but only to the extent the sum of all non-Defaulting Lenders’ Revolving Extensions of Credit Exposures plus such Defaulting Lender’s LC Swingline Exposure and L/C Exposure does not exceed the total of all non-Defaulting Lenders’ Revolving Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Parent Borrower applicable Borrowers shall within one Business Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of the Issuing Bank Lender only such Borrower’s the Borrowers’ obligations corresponding to such Defaulting Lender’s LC L/C Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(k) 8 for so long as such LC L/C Exposure is outstanding;
(iii) if the Parent Borrower applicable Borrowers cash collateralizes collateralize any portion of such Defaulting Lender’s LC L/C Exposure pursuant to clause (ii) above, the Parent Borrower applicable Borrowers shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.04(f3.3(a) with respect to such Defaulting Lender’s LC L/C Exposure during the period such Defaulting Lender’s LC L/C Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.10(a) and 2.04(f) shall be adjusted in accordance with such non-Defaulting Lenders’ Commitment; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all fees payable under Section 2.04(f) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Lender is a Defaulting Lender, no Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the applicable Borrower in accordance with Section 2.19(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 2.19(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 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, as the case may be, shall have entered into arrangements with the Parent Borrower or such Lender, satisfactory to the Issuing Bank to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the Parent Borrower and the Issuing Bank each agrees, acting in good faith and a commercially reasonable manner, 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 Commitment.
Appears in 2 contracts
Sources: Credit Agreement (Ultra Clean Holdings, Inc.), Credit Agreement (Ultra Clean Holdings, 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 unused amount of the Available Revolving Commitment of such Defaulting Lender pursuant to Section 2.10(a2.13(a);
(b) the Revolving Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders, the Supermajority Lenders, a Majority in Interest of any Class 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, waiver or other modification pursuant to Section 10.029.02); provided, provided that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an any amendment, waiver or other modification requiring the consent of each all Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender or each Lender affected therebyin accordance with the terms hereof;
(c) if any Swingline Exposure, LC Exposure or Protective Advance exists at the time such Revolving Lender becomes a Defaulting Lender then:
(i) all or the Swingline Exposure of such Defaulting Lender (other than any part of portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c)), the LC Exposure of such Defaulting Lender (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.06(d) and 2.06(f)) and such Defaulting Lender’s Applicable Percentage of the outstanding Protective Advances shall be reallocated among the nonNon-Defaulting Lenders in accordance with their respective Commitments Applicable Percentages but only to the extent that the sum of all nonNon-Defaulting Lenders’ Revolving Credit Total Exposures plus after giving effect to such Defaulting Lender’s LC Exposure does reallocation would not exceed the total sum of all nonNon-Defaulting Lenders’ Revolving Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Parent Borrower Borrowers shall within one Business Day following notice by the Administrative Agent (A) first, prepay the portion of such Defaulting Lender’s Applicable Percentage of any Protective Advances that may be outstanding that has not been reallocated, (B) second, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (C) third, cash collateralize for the benefit of the Issuing Bank only such Borrower’s obligations corresponding to Banks the portion of such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) that has not been reallocated in accordance with the procedures set forth in Section 2.04(k2.06(i) for so long as such LC Exposure is outstanding;
(iii) if the Parent a Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Parent Borrower shall not be required to pay any participation fees to such Defaulting Lender pursuant to Section 2.04(f2.13(b) with respect to such portion of such Defaulting Lender’s LC Exposure during the period for so long as such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of the non-such Defaulting Lenders Lender is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.10(a) and 2.04(fSection 2.13(b) shall be adjusted in accordance with to give effect to such non-Defaulting Lenders’ Commitmentreallocation; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all participation fees payable under Section 2.04(f2.13(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend amend, renew or increase extend any Letter of Credit, unless unless, in each case, it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure or LC Exposure Exposure, as applicable, will be 100% fully covered by the Revolving Commitments of the nonNon-Defaulting Lenders and/or cash collateral will be provided by the applicable Borrower Company in accordance with Section 2.19(c2.21(c), and participating interests in any newly issued such funded Swingline Loan or increased in any such issued, amended, renewed or extended Letter of Credit shall will be allocated among nonthe Non-Defaulting Lenders in a manner consistent with Section 2.19(c)(i2.21(c)(i) (and such Defaulting Lender shall not participate therein). If In the event that (ix) a Bankruptcy Event with respect to a Revolving Lender Parent of any Lender shall occur have occurred following the date hereof July 26, 2013, and for so long as such event Bankruptcy Event shall continue or (iiy) 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 such Issuing Bank shall not be required to issue, amend amend, renew or increase extend any Letter of Credit, unless the Swingline Lender or such Issuing Bank, as the case may be, shall have entered into arrangements with ▇▇▇▇▇▇ USA and the Parent applicable Borrower or such Lender, the applicable Revolving Lender satisfactory to the Swingline Lender or such Issuing Bank 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, ▇▇▇▇▇▇ USA, the Parent Borrower Company, the Swingline Lender and the each Issuing Bank each agrees, acting in good faith and a commercially reasonable manner, agree (such agreement not to be unreasonably withheld or delayed) that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure, the LC Exposure and the participations in the Protective Advances of the Revolving 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 Revolving Lenders as the Administrative Agent shall determine may be necessary in order for such Revolving Lender to hold such Loans in accordance with its CommitmentApplicable Percentage.
Appears in 2 contracts
Sources: Credit Agreement (Murphy USA Inc.), Credit Agreement (Murphy USA 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 Commitment of such Defaulting Lender pursuant to Section 2.10(a2.12(a);
(b) the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.029.02); provided, that that, except as otherwise provided in Section 9.02, this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of each such Lender or each Lender directly affected thereby;
(c) if any Swingline Exposure or LC Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Commitments Applicable Percentages but only to the extent (x) no Event of Default has occurred and is continuing and (y) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the total of all non-Defaulting Lenders’ Revolving Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Parent Borrower shall within one (1) Business Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of the relevant Issuing Bank Banks only such the Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(k2.06(j) for so long as such LC Exposure is outstanding;
(iii) if the Parent Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Parent Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.04(f2.12(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.10(a) and 2.04(fSection 2.12(b) shall be adjusted in accordance with such non-Defaulting Lenders’ CommitmentApplicable Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all Commitment Fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.04(f2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable relevant Issuing Bank Banks until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Lender is a Defaulting Lender, no the Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Bank Banks 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 applicable Borrower in accordance with Section 2.19(c2.22(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 2.19(c)(i2.22(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 Closing Date and for so long as such event shall continue, (ii) a Bail-In Action with respect to a Parent of any Lender shall occur following the First Amendment Effective Date and for so long as such event shall continue or (iiiii) 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 no Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless the Swingline Lender or such Issuing Bank, as the case may be, shall have entered into arrangements with the Parent Borrower or such Lender, satisfactory to the Swingline Lender or such Issuing Bank 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 Parent Borrower Borrower, the Swingline Lender and the each Issuing Bank each agrees, acting in good faith and a commercially reasonable manner, 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 CommitmentApplicable Percentage.
Appears in 2 contracts
Sources: Credit Agreement (Hill-Rom Holdings, Inc.), Credit Agreement (Hill-Rom 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 Commitment of such Defaulting Lender pursuant to Section 2.10(a2.12(a);
(b) the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 10.029.02); provided, provided that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendmentany waiver, waiver amendment or other modification requiring the consent of each Lender all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected therebyLenders shall require the consent of such Defaulting Lender, unless the effect of same is to eliminate the Defaulting Lender’s Commitment (which shall require only the consent of the Lenders that are not Defaulting Lenders);
(c) if any Swingline Exposure or LC Exposure exists at the time such a Lender becomes a Defaulting Lender then:
(i) all or any part of the such Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Commitments Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the total of all non-Defaulting Lenders’ CommitmentsCommitments and (y) the conditions set forth in Section 4.02 are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Parent Borrower shall within one Business Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of the Issuing Bank only such Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(k2.06(j) for so long as such LC Exposure is outstanding;
(iii) if the Parent Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) aboveSection 2.21(c), the Parent Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.04(f2.12(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) aboveSection 2.21(c), then the fees payable to the Lenders pursuant to Sections 2.10(aSection 2.12(a) and 2.04(fSection 2.12(b) shall be adjusted in accordance with such non-Defaulting Lenders’ CommitmentApplicable Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized nor reallocated pursuant to clause (i) or (ii) aboveSection 2.21(c), then, without prejudice to any rights or remedies of any the Issuing Bank or any other Lender hereunder, all facility fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.04(f2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank until and to the extent that such LC Exposure is reallocated cash collateralized and/or cash collateralizedreallocated; and
(d) so long as such any Lender is a Defaulting Lender, no 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 reasonably 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 applicable Borrower in accordance with Section 2.19(c2.21(c), 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 2.19(c)(i2.21(c)(i) (and such Defaulting Lender 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, as the case may be, shall have entered into arrangements with the Parent Borrower or such Lender, satisfactory to the Issuing Bank to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the Parent Borrower and Borrower, the Issuing Bank and the Swingline Lender each agrees, acting in good faith and a commercially reasonable manner, 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 CommitmentApplicable Percentage.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Service Corporation International), Revolving Credit Agreement (Service Corporation International)
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 Commitment of such Defaulting Lender pursuant to Section 2.10(a2.12(a);
(b) the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 10.029.02); providedprovided that any waiver, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver amendment or other modification requiring the consent of each Lender all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected therebyLenders shall require the consent of such Defaulting Lender;
(c) if any Swingline Exposure or LC Exposure exists at the time such a Lender becomes a Defaulting Lender then:
(i) all or any part of the such Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Commitments Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments;Commitments and (y) the conditions set forth in Section 4.02 are satisfied at such time; and
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Parent Borrower shall within one (1) Business Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of the Issuing Bank only such Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(k2.06(j) for so long as such LC Exposure is outstanding;
(iii) if the Parent Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) aboveSection 2.20(c), the Parent Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.04(f2.12(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) aboveSection 2.20(c), then the fees payable to the Lenders pursuant to Sections 2.10(aSection 2.12(a) and 2.04(fSection 2.12(b) shall be adjusted in accordance with such non-Defaulting Lenders’ CommitmentApplicable Percentages; andor
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized nor reallocated pursuant to clause (i) or (ii) aboveSection 2.20(c), then, without prejudice to any rights or remedies of any the Issuing Bank or any other Lender hereunder, all letter of credit fees payable under Section 2.04(f2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank until and to the extent that such LC Exposure is reallocated cash collateralized and/or cash collateralizedreallocated; and
(d) so long as such any Lender is a Defaulting Lender, no 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 applicable Borrower in accordance with Section 2.19(c2.20(c), 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 2.19(c)(i2.20(c)(i) (and such Defaulting Lender 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, as the case may be, shall have entered into arrangements with the Parent Borrower or such Lender, satisfactory to the Issuing Bank to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the Parent Borrower and Borrower, the Issuing Bank and the Swingline Lender each agrees, acting in good faith and a commercially reasonable manner, 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 CommitmentApplicable Percentage.
Appears in 2 contracts
Sources: Credit Agreement (Ethan Allen Interiors Inc), Credit Agreement (Lifetime 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 Available Commitment of such Defaulting Lender pursuant to Section 2.10(a2.12(a);
(b) the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.029.02); provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of each such Lender or each Lender affected thereby;
(c) if any Swingline Exposure or LC Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Commitments Applicable Percentages 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;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Parent Borrower Company shall within one (1) Business Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of the relevant Issuing Bank Banks only such Borrowerthe Company’s obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(k2.06(j) for so long as such LC Exposure is outstanding;
(iii) if the Parent Borrower Company cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Parent Borrower Company shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.04(f2.12(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.10(aSection 2.12(a) and 2.04(fSection 2.12(b) shall be adjusted in accordance with such non-Defaulting Lenders’ CommitmentApplicable Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all letter of credit fees payable under Section 2.04(f2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable relevant Issuing Bank until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Lender is a Defaulting Lender, no the Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Bank Banks 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 applicable Borrower Company in accordance with Section 2.19(c2.22(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 2.19(c)(i2.22(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 no Issuing Bank shall not 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 Parent Borrower Company or such Lender, satisfactory to the Swingline Lender or such Issuing Bank 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 Parent Borrower Company, the Swingline Lender and the Issuing Bank Banks each agrees, acting in good faith and a commercially reasonable manner, 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 CommitmentApplicable Percentage.
Appears in 2 contracts
Sources: Credit Agreement (Watsco Inc), Credit Agreement (Watsco 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 Commitment of such Defaulting Lender pursuant to Section 2.10(a2.12(a);
(b) the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.029.03); provided, that that, except as otherwise provided in Section 9.03, this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of each such Lender or each Lender directly affected thereby;
(c) if any Swing Line Exposure or LC Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of the Swing Line Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Commitments Applicable Percentages but only to the extent that the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swing Line Exposure and LC 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 effected, the Parent Borrower Company shall within one five (5) Business Day Days following notice by the Administrative Agent cash collateralize (x) first, prepay such Swing Line Exposure and (y) second, Cash Collateralize for the benefit of the Issuing Bank only such Borrower’s the Borrowers’ obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(k) 2.21 for so long as such LC Exposure is outstanding;
(iii) if the Parent Borrower cash collateralizes Company Cash Collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Parent Borrower Borrowers shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.04(f2.12(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralizedCash Collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.10(a) and 2.04(fSection 2.12(b) shall be adjusted in accordance with such non-Defaulting Lenders’ CommitmentApplicable Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized Cash Collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any the Issuing Bank or any other Lender hereunder, all unused fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.04(f2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank until and to the extent that such LC Exposure is reallocated and/or cash collateralizedCash Collateralized; and
(d) so long as such Lender is a Defaulting Lender, no the Swing Line Lender shall not be required to fund any Swing Line 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 Cash Collateral will be provided by the applicable Borrower Company in accordance with Section 2.19(c2.25(c), and participating interests in any such newly made Swing Line Loan or any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.19(c)(i2.25(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to a Lender Parent of any Lender shall occur following the date hereof and for so long as such event shall continue or (ii) the Swing Line Lender or the Issuing 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 Swing Line Lender shall not be required to fund any Swing Line Loan and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless the Swing Line Lender or the Issuing Bank, as the case may be, shall have entered into arrangements with the Parent Borrower Company or such Lender, satisfactory to the Swing Line Lender or the Issuing Bank Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. Subject to Section 9.18, 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.
(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 VII or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 9.09 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 the Issuing Bank or Swing Line Lender hereunder; third, to Cash Collateralize the Issuing Bank’s Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.25; fourth, as the Company 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 reasonably determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and the Company, 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 Bank’s future Fronting Exposure with respect to such Defaulting Lender with respect to future Letters of Credit issued under this Agreement, in accordance with Section 2.21; sixth, to the payment of any amounts owing to the Lenders, the Issuing Bank or Swing Line Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, the Issuing Bank or the Swing Line Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default exists, to the payment of any amounts owing to the Company as a result of any judgment of a court of competent jurisdiction obtained by the Company against such Defaulting 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 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 Exposure owed to, all non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or LC Exposure owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in LC Exposure and Swing Line Loans are held by the Lenders pro rata in accordance with the Commitments hereunder without giving effect to Section 2.25(c). Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post Cash Collateral pursuant to this Section 2.25(e) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto. In the event that the Administrative Agent, the Parent Borrower Company, the Swing Line Lender and the Issuing Bank each agrees, acting in good faith and a commercially reasonable manner, agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Administrative Agent will so notify the parties hereto in writing, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein that Lender will cease to be a Defaulting Lender and (i) the Swing Line 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 Swing Line Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its CommitmentApplicable Percentage and (ii) any cash, or portion thereof, as applicable, provided by the Company as Cash Collateral under this Section 2.25 shall be promptly released and returned to the Company.
Appears in 2 contracts
Sources: Credit Agreement (Bruker Corp), Credit Agreement (Bruker 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 Available Revolving Commitment of such Defaulting Lender pursuant to Section 2.10(a2.8(a);
(b) the Revolving Commitment and Revolving Extensions of Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders, the Required Revolving Lenders or the Majority Facility Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.0210.1); provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of each such Lender or each Lender affected thereby;
(c) if any LC Swingline Exposure or L/C Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of the LC Swingline Exposure and L/C Exposure of such Defaulting Lender (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) shall be reallocated among the non-Defaulting Lenders in accordance with their respective Commitments Revolving Percentages but only to the extent the sum of all non-Defaulting Lenders’ Revolving Extensions of Credit Exposures plus such Defaulting Lender’s LC Swingline Exposure and L/C Exposure does not exceed the total of all non-Defaulting Lenders’ Revolving Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Parent Borrower applicable Borrowers shall within one Business Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of the Issuing Bank Lender only such Borrower’s the Borrowers’ obligations corresponding to such Defaulting Lender’s LC L/C Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(k) 8 for so long as such LC L/C Exposure is outstanding;
(iii) if the Parent Borrower applicable Borrowers cash collateralizes collateralize any portion of such Defaulting Lender’s LC L/C Exposure pursuant to clause (ii) above, the Parent Borrower applicable Borrowers shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.04(f3.3(a) with respect to such Defaulting Lender’s LC L/C Exposure during the period such Defaulting Lender’s LC L/C Exposure is cash collateralized;
(iv) if the LC L/C Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.10(a) and 2.04(fSection 3.3(a) shall be adjusted in accordance with such non-Defaulting Lenders’ CommitmentRevolving Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC L/C Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any the Issuing Bank Lender or any other Lender hereunder, all fees payable under Section 2.04(f3.3(a) with respect to such Defaulting Lender’s LC L/C Exposure shall be payable to the applicable Issuing Bank Lender until and to the extent that such LC L/C Exposure is reallocated and/or cash collateralized; and
(d) so long as such Lender is a Defaulting Lender, no the Swingline Lenders shall not be required to fund any Swingline Loan and the Issuing Bank 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 L/C Exposure will be 100% covered by the Revolving Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the applicable Borrower Borrowers in accordance with Section 2.19(c2.23(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 Lenders in a manner consistent with Section 2.19(c)(i2.23(c)(i) (and such Defaulting Lender shall not participate therein). If .
(i) a Bankruptcy Event or a Bail-In Action with respect to a Lender Parent of any Lender shall occur following the date hereof and for so long as such event shall continue or (ii) the Swingline Lenders or the Issuing Bank 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 Lenders shall not be required to fund any Swingline Loan and the Issuing Bank Lender shall not be required to issue, amend or increase any Letter of Credit, unless the Swingline Lenders or the Issuing BankLender, as the case may be, shall have entered into arrangements with the Parent Borrower applicable Borrowers or such Lender, satisfactory to the Swingline Lenders or the Issuing Bank Lender, 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 Parent Borrower Borrower, the Swingline Lenders and the Issuing Bank Lender each agrees, acting in good faith and a commercially reasonable manner, agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the LC Swingline Exposure and L/C 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 CommitmentRevolving Percentage.
Appears in 2 contracts
Sources: Credit Agreement (Ultra Clean Holdings, Inc.), Credit Agreement (Ultra Clean Holdings, 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 Available Commitment of such Defaulting Lender pursuant to Section 2.10(a2.12(a);
(b) the Revolving Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether 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, waiver or other modification pursuant to Section 10.029.02); provided, provided that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an any amendment, waiver or other modification requiring the consent of each all Lenders or all Lenders adversely affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender or each Lender affected therebyin accordance with the terms hereof;
(c) if any LC Exposure exists at the time such a Revolving Lender becomes a Defaulting Lender Lender, 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 Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(e) and 2.05(f)) of such Defaulting Lender shall be reallocated among the non-Defaulting Revolver Lenders in accordance with their respective Commitments Applicable Percentages but only to the extent that (x) the sum of all non-Defaulting Revolving Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s LC Exposure does not exceed the total sum of all non-Defaulting Revolving Lenders’ CommitmentsRevolving Commitments and (y) such reallocation does not cause the aggregate Revolving Exposure of any non-Defaulting Lender to exceed such non-Defaulting Lender’s Commitment; provided that, subject to Section 9.18, 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;
(iiiii) if the reallocation described in clause (iii) above cannot, or can only partially, be effected, the Parent Swiss Borrower shall within one Business Day following notice by the Administrative Agent cash collateralize for the benefit of the Issuing Bank only such Borrower’s obligations corresponding to Banks the portion of such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) that has not been reallocated in accordance with the procedures set forth in Section 2.04(k2.05(i) for so long as such LC Exposure is outstanding;
(iiiiv) if the Parent Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure is cash collateralized pursuant to clause (iiiii) above, the Parent Borrower Borrowers shall not be required to pay any participation fees to such Defaulting Lender pursuant to Section 2.04(f2.12(b) with respect to such portion of such Defaulting Lender’s LC Exposure during the period for so long as such Defaulting Lender’s LC Exposure is cash collateralized;
(ivv) if any portion of the LC Exposure of the non-such Defaulting Lenders Lender is reallocated pursuant to clause (iii) above, then the fees payable to the Lenders pursuant to Sections 2.10(a2.12(a) and 2.04(f2.12(b) shall be adjusted in accordance with to give effect to such non-Defaulting Lenders’ Commitmentreallocation; and
(vvi) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (iii) or (iiiii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all participation fees payable under Section 2.04(f2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender, no Issuing Bank shall be required to issue, amend amend, renew or increase extend any Letter of Credit, Credit unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% fully covered by the Revolving Commitments of the non-Defaulting Revolving Lenders and/or cash collateral will be provided by the applicable Swiss Borrower in accordance with Section 2.19(c2.20(c), and participating interests in any newly issued such issued, amended, renewed or increased extended Letter of Credit shall will be allocated among the non-Defaulting Revolving Lenders in a manner consistent with Section 2.19(c)(i2.20(c)(ii) (and such Defaulting Lender shall not participate therein). If In the event that (i) a Bankruptcy Event with respect to a Revolving Lender Parent of any Lender shall occur following the date hereof Effective Date and for so long as such event Bankruptcy Event shall continue or (ii) the 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 such Issuing Bank shall not be required to issue, amend amend, renew or increase extend any Letter of Credit, unless the such Issuing Bank, as the case may be, Bank shall have entered into arrangements with Holdings and the Parent Swiss Borrower or such the applicable Revolving Lender, satisfactory to the such Issuing Bank to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, Holdings, the Parent applicable Borrower and the each applicable Issuing Bank each agrees, acting in good faith and a commercially reasonable manner, agrees that a Defaulting Lender has adequately remedied all matters that caused such the applicable Revolving Lender to be a Defaulting Lender, then the LC 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 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 CommitmentApplicable Percentage; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Swiss 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 Lender’s having been a Defaulting Lender.
Appears in 2 contracts
Sources: Credit Agreement (Garrett Motion Inc.), Credit Agreement (Garrett Motion 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, to the extent permitted by applicable law:
(a) fees shall cease to accrue and be payable on the unfunded portion of the Available Commitment Revolving Commitments of such Defaulting Lender pursuant to Section 2.10(a)3.5;
(b) the Commitment Revolving Commitments and Revolving Credit Exposure Term Loans of such Defaulting Lender shall not be included in determining whether the Required Lenders, Majority Facility Lenders, all Lenders, or all Lenders under any Facility have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.0211.1); provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of each Lender or each Lender affected (or adversely affected) thereby;
(c) if any LC Exposure exists Swingline Loans or L/C Obligations exist at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of the LC Exposure Defaulting Lender’s Revolving Percentage of the Swingline Loans then outstanding and L/C Obligations of such Defaulting Lender shall be reallocated among the Revolving Lenders that are non-Defaulting Lenders in accordance with their respective Commitments Revolving Percentages but only to the extent the sum of all non-Defaulting Lenders’ Revolving Extensions of Credit Exposures plus such Defaulting Lender’s LC Exposure Revolving Percentage of the Swingline Loans then outstanding and L/C Obligations does not exceed the total of all non-Defaulting Lenders’ Revolving Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Parent Borrower shall within one three Business Day Days following the Borrower’s receipt of notice by from the Administrative Agent (x) first, prepay such Defaulting Lender’s Revolving Percentage of the Swingline Loans then outstanding and (y) second, cash collateralize for the benefit of the Issuing Bank Lender only such the Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure L/C Obligations (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(k) 9 for so long as such LC Exposure is L/C Obligations are outstanding;
(iii) if the Parent Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure L/C Obligations pursuant to clause (ii) above, the Parent Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.04(f) 3.9 with respect to such Defaulting Lender’s LC Exposure L/C Obligations during the period such Defaulting Lender’s LC Exposure is L/C Obligations are cash collateralized;
(iv) if the LC Exposure L/C Obligations of the Revolving Lenders that are non-Defaulting Lenders is are reallocated pursuant to clause (i) above, then the fees payable to the Revolving Lenders pursuant to Sections 2.10(a) Section 3.5 and 2.04(f) Section 3.9 shall be adjusted in accordance with such non-Defaulting Lenders’ CommitmentRevolving Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is L/C Obligations are neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any the Issuing Bank Lender or any other Lender hereunder, all fees payable pursuant to Section 3.5 that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such L/C Obligations) and fees payable under Section 2.04(f) 3.9 with respect to such Defaulting Lender’s LC Exposure L/C Obligations shall be payable to the applicable Issuing Bank Lender until and to the extent that such LC Exposure is L/C Obligations are reallocated and/or cash collateralized; and
(d) so long as such Lender is a Defaulting Lender, no the Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Bank 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 Exposure L/C Obligations will be 100% covered by the Revolving Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the applicable Borrower in accordance with Section 2.19(c4.16(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 Lenders in a manner consistent with Section 2.19(c)(i4.16(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to a Lender Parent of any Lender shall occur following the date hereof and for so long as such event shall continue or (ii) the Swingline Lender or the Issuing Bank 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 Bank Lender shall not be required to issue, amend or increase any Letter of Credit, unless the Swingline Lender or the Issuing BankLender, as the case may be, shall have entered into arrangements with the Parent Borrower or such Lender, reasonably satisfactory to the Swingline Lender or the Issuing Bank Lender, as the case may be, to defease any risk to it in respect of such Lender hereunder. .
(e) In the event that the Administrative Agent, the Parent Borrower Borrower, the Swingline Lender and the Issuing Bank Lender each agrees, acting agrees in good faith and a commercially reasonable manner, writing that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the LC Exposure Lenders’ Revolving Percentages of the Swingline Loans then outstanding and the L/C Obligations of the Revolving 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 Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Revolving Loans in accordance with its CommitmentApplicable Percentage.
Appears in 2 contracts
Sources: Amendment and Restatement Agreement (Metropcs Communications Inc), Amendment and Restatement Agreement (Metropcs Communications 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) facility fees shall cease to accrue on the unfunded portion unused amount of the Available Commitment of such Defaulting Lender pursuant to Section 2.10(a2.11(a);
(b) the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether 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, waiver or other modification pursuant to Section 10.029.02); provided, provided that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an any amendment, waiver or other modification requiring the consent of each all Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender or each Lender affected therebyin accordance with the terms hereof;
(c) if any LC Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) all so long as no Default or any part Event of Default has occurred and is continuing, the LC Exposure of such Defaulting Lender shall be reallocated among the nonNon-Defaulting Lenders in accordance with their respective Commitments Applicable Percentages but only to the extent that the sum of all nonNon-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s LC Exposure does not exceed the total sum of all nonNon-Defaulting Lenders’ Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Parent Borrower shall within one Business Day following notice by the Administrative Agent Agent, cash collateralize for the benefit of the Issuing Bank only such Borrower’s obligations corresponding to Banks the portion of such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) that has not been reallocated in accordance with the procedures set forth in Section 2.04(k2.05(j) for so long as such LC Exposure is outstanding;
(iii) if the Parent Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Parent Borrower shall not be required to pay any participation fees to such Defaulting Lender pursuant to Section 2.04(f2.11(b) with respect to such portion of such Defaulting Lender’s LC Exposure during the period for so long as such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of the non-such Defaulting Lenders Lender is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.10(a2.11(a) and 2.04(f2.11(b) shall be adjusted in accordance with to give effect to such non-Defaulting Lenders’ Commitmentreallocation; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all facility fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment utilized by such LC Exposure) and participation fees payable under Section 2.04(f2.11(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Lender is a Defaulting Lender, no Issuing Bank shall be required to issue, amend amend, renew or increase extend any Letter of Credit, unless in each case it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% fully covered by the Commitments of the nonNon-Defaulting Lenders and/or cash collateral will be provided by the applicable Borrower in accordance with Section 2.19(c2.22(c), and participating interests in any newly issued such issued, amended, reviewed or increased extended Letter of Credit shall will be allocated among nonthe Non-Defaulting Lenders in a manner consistent with Section 2.19(c)(i2.22(c)(i) (and such Defaulting Lender shall not participate therein). If In the event that (ix) a Bankruptcy Event with respect to a Lender Parent of any Lender shall occur have occurred following the date hereof and for so long as such event Bankruptcy Event shall continue or (iiy) the 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 no Issuing Bank shall not be required to issue, amend amend, renew or increase extend any Letter of Credit, unless the such Issuing Bank, as the case may be, Bank shall have entered into arrangements with the Parent Borrower or such Lender, Lender satisfactory to the such Issuing Bank to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the Parent Borrower and the each Issuing Bank each agrees, acting in good faith agree (provided that the Borrower’s agreement shall not be required if an Event of Default has occurred and a commercially reasonable manner, is continuing) 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 CommitmentApplicable Percentage.
Appears in 2 contracts
Sources: Credit Agreement (Macy's, Inc.), Credit Agreement (Macy's, 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 Lenderapply:
(ai) fees Facility Fees shall cease to accrue on the unfunded unused portion of the Available Commitment of such Defaulting Lender pursuant to Section 2.10(a);Lender’s Commitment.
(bii) the The Commitment and Revolving Outstanding Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or other requisite Lenders have taken or may take any action hereunder (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 10.028.2); providedprovided that any waiver, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver amendment or other modification requiring the consent of each Lender all Lenders or each affected Lender shall require the consent of such Defaulting Lender (in such case, to the extent such Defaulting Lender is an affected thereby;Lender).
(ciii) if any LC Exposure exists at the time such Lender becomes Unless a Defaulting Lender then:
(i) Default or an Unmatured Default shall have occurred and be continuing, all or any part of the such Defaulting Lender’s Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Commitments Pro Rata Shares of the Aggregate Commitment, but only to the extent the sum of all non-Defaulting Lenders’ Revolving Outstanding Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments;.
(iiiv) if If the LC Exposure of such Defaulting Lender is reallocated pursuant to clause (iii) above, then the LC Participation Fees payable to the Lenders pursuant to Section 2.8.2 shall be adjusted in accordance with such reallocation.
(v) If (or to the extent) the reallocation described in clause (iiii) above cannot, or can only partially, be effected, the Parent each Borrower shall within one Business Day following notice by the Administrative Agent (x) first, prepay the Defaulting Lender’s non-reallocated portion of the Swingline Exposure attributable to Swingline Loans made to such Borrower and (y) second, cash collateralize for the benefit of the Issuing Bank only Banks such Borrower’s obligations corresponding to the portion of such Defaulting Lender’s non-reallocated LC Exposure that is attributable to Letters of Credit issued for the account of such Borrower (in each case, as determined after giving effect to any partial reallocation pursuant to clause (iiii) above) in accordance with the procedures set forth in Section 2.04(k2.6(i) for so long as such LC Exposure is outstanding;.
(iiivi) if the Parent If a Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (iiv) above, the Parent such Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.04(f) 2.8.2 with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;.
(ivvii) if The Agent shall adjust the allocation of payments hereunder to ensure that a Defaulting Lender does not receive payment in respect of any Loan or LC Exposure Disbursement that it did not fund or to reflect any of the non-Defaulting Lenders is reallocated pursuant actions or adjustments referred to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.10(a) and 2.04(f) shall be adjusted in accordance with such non-Defaulting Lenders’ Commitment; andthis Section 2.25.
(vb) 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 fees payable under Section 2.04(f) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Lender is a Defaulting Lender, no Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the applicable Borrower in accordance with Section 2.19(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 2.19(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to a Parent the 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 any Issuing Bank has shall have 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 or increase any Letter of Credit, unless the Swingline Lender or such Issuing Bank, as the case may be, shall have entered into arrangements with the Parent applicable Borrower or such Lender, Lender reasonably satisfactory to the Swingline Lender or such Issuing Bank Bank, as the case may be, to defease any mitigate the risk to it in respect of such Lender hereunder. failing to satisfy its participating interest therein.
(c) In the event that the Administrative Agent, each Borrower, the Parent Borrower Swingline Lender and the each Issuing Bank each agrees, acting in good faith and a commercially reasonable manner, 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 (other than Competitive Loans and Swingline Loans) and 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 in accordance with its CommitmentPro Rata Share.
(d) Except as expressly provided in this Section 2.25 in connection with the obligations of the Swingline Lender or the Issuing Banks, the obligation of each Lender, Issuing Bank and Swingline Lender to fund the full amount of its Commitment and to make Loans, Advances and other extensions of credit hereunder shall not be released or diminished in any respect by any other Lender becoming a Defaulting Lender.
(e) None of the foregoing provisions of this Section 2.25 shall be deemed to effect, diminish or release any rights, claims or causes of action the Borrowers may have against any Lender that becomes a Defaulting Lender.
Appears in 2 contracts
Sources: Credit Agreement (Ameren Energy Generating Co), Credit Agreement (Ameren Energy Generating 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 Available Commitment of such Defaulting Lender pursuant to Section 2.10(a2.5(a);
(b) the Commitment and Revolving Extensions of Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.0210.1); provided, provided that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of each Lender or each Lender affected therebysuch Lender;
(c) if any LC Swingline Exposure or L/C Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of the LC Swingline Exposure and L/C Exposure of such Defaulting Lender (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) shall be reallocated among the non-Defaulting Lenders in accordance with their respective Commitments Revolving Percentages but only to the extent the sum of all non-Defaulting Lenders’ Revolving Extensions of Credit Exposures plus such Defaulting Lender’s LC Swingline Exposure and L/C 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 effected, the Parent Borrower shall shall, within one two Business Day 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 Lender only such the Borrower’s obligations corresponding to such Defaulting Lender’s LC L/C Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(k) 8 for so long as such LC L/C Exposure is outstanding;
(iii) if the Parent Borrower cash collateralizes any portion of such Defaulting Lender’s LC L/C Exposure pursuant to clause (ii) above, the Parent Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.04(f3.3(a) with respect to such Defaulting Lender’s LC L/C Exposure during the period such Defaulting Lender’s LC L/C Exposure is cash collateralized;
(iv) if the LC L/C Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.10(aSection 2.5(a) and 2.04(fSection 3.3(a) shall be adjusted in accordance with such non-Defaulting Lenders’ CommitmentRevolving Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC L/C Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any the Issuing Bank Lender or any other Lender hereunder, all fees payable under Section 2.04(f3.3(a) with respect to such Defaulting Lender’s LC L/C Exposure shall be payable to the applicable Issuing Bank Lender until and to the extent that such LC L/C Exposure is reallocated and/or cash collateralized; and
(d) so long as such Lender is a Defaulting Lender, no the Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Bank 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 L/C Exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the applicable Borrower in the amount of such Defaulting Lender’s L/C Exposure in accordance with Section 2.19(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 Lenders in a manner 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 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, as the case may be, shall have entered into arrangements with the Parent Borrower or such Lender, satisfactory to the Issuing Bank to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the Parent Borrower and the Issuing Bank each agrees, acting in good faith and a commercially reasonable manner, 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 Commitment.
Appears in 2 contracts
Sources: Third Amendment and Extension Agreement (Air Lease Corp), Third Amendment and Extension Agreement (Air Lease 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 Available Revolving Credit Commitment of such Defaulting Lender pursuant to Section 2.10(a)3.04;
(b) the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.029.02); provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of each such Lender or each Lender affected thereby;
(c) if any Swingline Exposure or LC Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Commitments Commitment Proportions 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’ Revolving Credit Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Parent Borrower Company shall within one Business Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of the Issuing Bank Lender only such Borrowerthe Company’s obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(k2.06(j) for so long as such LC Exposure is outstanding;
(iii) if the Parent Borrower Company cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Parent Borrower Company shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.04(f3.04(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.10(aSection 3.04(a) and 2.04(fSection 3.04(b) shall be adjusted in accordance with such non-Defaulting Lenders’ CommitmentCommitment Proportions; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any the Issuing Bank Lender or any other Lender hereunder, all letter of credit fees payable under Section 2.04(f3.04(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank Lender until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Lender is a Defaulting Lender, no the Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Bank 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 Exposure will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the applicable Borrower Company in accordance with Section 2.19(c2.07(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 Lenders in a manner consistent with Section 2.19(c)(i2.07(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 Bank 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 Bank Lender shall not be required to issue, amend or increase any Letter of Credit, unless the Swingline Lender or the Issuing BankLender, as the case may be, shall have entered into arrangements with the Parent Borrower Company or such Lender, satisfactory to the Swingline Lender or the Issuing Bank Lender, 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 Parent Borrower Company, the Swingline Lender and the Issuing Bank Lender each agrees, acting in good faith and a commercially reasonable manner, 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 CommitmentCommitment Proportion.
Appears in 2 contracts
Sources: Credit Agreement (Medical Action Industries Inc), Credit Agreement (Medical Action 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 Available Commitment of such Defaulting Lender pursuant to Section 2.10(a2.12(a);
(b) the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.029.02); provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of each such Lender or each Lender affected thereby;
(c) if any Swingline Exposure or LC Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Commitments Applicable Percentages 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;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Parent Borrower shall within one (1) Business Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of the Issuing Bank only such the Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(k2.06(j) for so long as such LC Exposure is outstanding;
(iii) if the Parent Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Parent Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.04(f2.12(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.10(aSection 2.12(a) and 2.04(fSection 2.12(b) shall be adjusted in accordance with such non-Defaulting Lenders’ CommitmentApplicable Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any the Issuing Bank or any other Lender hereunder, all letter of credit fees payable under Section 2.04(f2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Lender is a Defaulting Lender, no 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 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 applicable Borrower in accordance with Section 2.19(c2.21(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 2.19(c)(i2.21(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 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 Parent Borrower or such Lender, satisfactory to the Swingline Lender or the Issuing Bank 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 Parent Borrower Borrower, the Swingline Lender and the Issuing Bank each agrees, acting in good faith and a commercially reasonable manner, 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 CommitmentApplicable Percentage.
Appears in 2 contracts
Sources: Credit Agreement (Ch Energy Group Inc), Credit Agreement (Chicos Fas 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 2.10(a2.12(a);
(b) the Revolving Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 10.029.02); provided, provided that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendmentany waiver, waiver amendment or other modification requiring the consent of each Lender all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected therebyLenders shall require the consent of such Defaulting Lender;
(c) if any Swingline Exposure or LC Exposure exists at the time such a Lender becomes a Defaulting Lender then:
(i) all or any part of the such Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Commitments Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments;Revolving Commitments and (y) the conditions set forth in Section 4.02 are satisfied at such time; and
(ii) if the reallocation described in clause paragraph (i) above cannot, or can only partially, be effected, the Parent Borrower Borrowers shall within one Business Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of the Issuing Bank only such Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause paragraph (i) above) in accordance with the procedures set forth in Section 2.04(k2.06(j) for so long as such LC Exposure is outstanding;
(iii) if the Parent Borrower Borrowers cash collateralizes collateralize any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) aboveSection 2.20(c), the Parent Borrower Borrowers shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.04(f2.12(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) aboveSection 2.20(c), then the fees payable to the Lenders pursuant to Sections 2.10(a2.12(a) and 2.04(f(b) shall be adjusted in accordance with such non-Defaulting Lenders’ CommitmentApplicable Percentages; andor
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized nor reallocated pursuant to clause (i) or (ii) aboveSection 2.20(c), then, without prejudice to any rights or remedies of any the Issuing Bank or any other Lender hereunder, all facility fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.04(f2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank until and to the extent that such LC Exposure is reallocated cash collateralized and/or cash collateralized; andreallocated;
(d) so long as such Lender is a Defaulting Lender, no 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 applicable Borrower Borrowers in accordance with Section 2.19(c2.20(c), and participating interests in any such newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.19(c)(i) (and such 2.20(c)(i)(and Defaulting Lender Lenders shall not participate therein). If ; and
(ie) a Bankruptcy Event with respect to a Parent of any Lender shall occur following in the event and on 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 each of Credit, unless the Issuing Bank, as the case may be, shall have entered into arrangements with the Parent Borrower or such Lender, satisfactory to the Issuing Bank to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the Parent Borrower and Borrowers, the Issuing Bank each agrees, acting in good faith and a commercially reasonable manner, the Swingline Lender 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 other 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 CommitmentApplicable Percentage.
Appears in 2 contracts
Sources: Credit Agreement (Kaiser Aluminum Corp), Credit Agreement (Kaiser Aluminum 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 Available Commitment of such Defaulting Lender pursuant to Section 2.10(a2.12(a);
(b) the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 10.029.02); providedprovided that any waiver, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver amendment or other modification requiring the consent of each Lender all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected therebyLenders shall require the consent of such Defaulting Lender;
(c) if any Swingline Exposure or LC Exposure exists at the time such a Lender becomes a Defaulting Lender then:
(i) all or any part of the such Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Commitments Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the total of all non-Defaulting Lenders’ CommitmentsCommitments and (y) the conditions set forth in Section 4.02 are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Parent Borrower shall within one (1) Business Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of the Issuing Bank only such Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(k2.06(j) for so long as such LC Exposure is outstanding;
(iii) if the Parent Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) aboveSection 2.21(c), the Parent Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.04(f2.12(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) aboveSection 2.21(c), then the fees payable to the Lenders pursuant to Sections 2.10(a2.12(a) and 2.04(f2.12(b) shall be adjusted in accordance with such non-Defaulting Lenders’ CommitmentApplicable Percentages; andor
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized nor reallocated pursuant to clause (i) or (ii) aboveSection 2.21(c), then, without prejudice to any rights or remedies of any the Issuing Bank or any other Lender hereunder, all letter of credit fees payable under Section 2.04(f2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank until and to the extent that such LC Exposure is reallocated cash collateralized and/or cash collateralizedreallocated; and
(d) so long as such any Lender is a Defaulting Lender, no 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 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 applicable Borrower in accordance with Section 2.19(c2.21(c), 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 2.19(c)(i2.21(c)(i) (and such Defaulting Lender 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, as the case may be, shall have entered into arrangements with the Parent Borrower or such Lender, satisfactory to the Issuing Bank to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the Parent Borrower and Borrower, the Issuing Bank and the Swingline Lender each agrees, acting in good faith and a commercially reasonable manner, 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 CommitmentApplicable Percentage.
Appears in 1 contract
Sources: Credit Agreement (Deluxe 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 Available Commitment Percentage of such Defaulting Lender in the unused portion of each Borrower’s Borrower Sublimit pursuant to Section 2.10(a2.05(a);
(b) the Commitment and Revolving Credit Exposure Outstanding Credits of such Defaulting Lender shall not be included in determining whether (i) the Required Majority Lenders have taken or may take any action hereunder under this Agreement or (including ii) all Lenders affected thereby have taken or may take any consent to any amendmentaction under this Agreement, waiver or other modification pursuant to Section 10.02); provided, that this clause (b) shall not apply except to the vote extent Section 8.01 requires the consent of a all Lenders affected thereby (and does not otherwise exclude the Defaulting Lender in the case of Lenders from such required consent) to an amendment, waiver or other modification requiring the consent of each Lender or each Lender affected therebymodification;
(c) if any LC Exposure exists Swing Line Advance, Letter of Credit or Reimbursement Obligation is outstanding at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of the LC Exposure obligation of such Defaulting Lender to participate in such Swing Line Advance, Letter of Credit or Reimbursement Obligation shall be reallocated among the non-Defaulting Lenders in accordance with their respective Commitments Percentages but only to the extent that (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s LC Exposure Outstanding Credits does not exceed the total of all non-Defaulting Lenders’ CommitmentsCommitments and (y) the conditions set forth in Section 3.02 are satisfied at such time; provided, that, subject to Section 8.16, no such 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;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Parent each Borrower shall within one Business Day following notice by the Administrative Agent (x) first, prepay its Swing Line Advances, if any, and (y) second, cash collateralize for the benefit of the Issuing Bank applicable Fronting Banks only such Borrower’s obligations obligations, if any, corresponding to such Defaulting Lender’s LC Exposure obligation to participate in Letters of Credit (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with a manner reasonably satisfactory to the procedures set forth in Section 2.04(k) Administrative Agent and such Fronting Banks for so long as such LC Exposure is L/C Obligations are outstanding;
(iii) if and to the Parent extent that any Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure obligation to participate in Letters of Credit pursuant to clause (ii) above, the Parent such Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.04(f2.05(c) with respect to such Defaulting Lender’s LC Exposure Percentage of the Stated Amount of all Letters of Credit during the period such Defaulting Lender’s LC Exposure obligation is cash collateralized;
(iv) if the LC Exposure obligation of the non-Defaulting Lenders to participate in Letters of Credit is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.10(a) and 2.04(fSection 2.05(c) shall be adjusted in accordance with such non-Defaulting Lenders’ CommitmentPercentages; and
(v) if all or any portion of such the obligation of the non-Defaulting Lender’s LC Exposure Lenders to participate in Letters of Credit is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Fronting Bank or any other Lender hereunder, all fees payable under Section 2.04(f2.05(c) with respect to such Defaulting Lender’s LC Exposure Percentage of the Stated Amount of all Letters of Credit shall be payable to the applicable Issuing Bank Fronting Banks until and to the extent that such LC Exposure obligation is reallocated and/or cash collateralized; and;
(d) so long as such Lender is a Defaulting Lender, no Issuing Swing Line Lender shall be required to fund any Swing Line Advance, and no Fronting Bank shall be required to issue, amend or increase make any Extension of Credit in connection with a Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure obligations to participate in such Letter of Credit will be 100% covered by the Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the applicable Borrower in accordance with Section 2.19(c)subsection (c) above, and participating interests in any newly issued made Swing Line Advance or increased any new Extension of Credit relating to a Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.19(c)(isubsection (c)(i) above (and such Defaulting Lender 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 (whether voluntary or mandatory, at maturity, pursuant to Article VI or otherwise) shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting 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 Fronting Bank or Swing Line Lender hereunder; third, to cash collateralize the Fronting Banks’ Fronting Exposure with respect to such Defaulting Lender in accordance with subsection (c) above; fourth, as the Borrower may request (so long as no Unmatured 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 determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and the Borrowers, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Advances under this Agreement and (y) cash collateralize the Fronting Banks’ future Fronting Exposure with respect to such Defaulting Lender with respect to future Letters of Credit issued under this Agreement, in accordance with subsection (c) above; sixth, to the payment of any amounts owing to the Lenders, the Fronting Banks or Swing Line Lenders as a result of any judgment of a court of competent jurisdiction obtained by any Lender, any Fronting Bank or any Swing Line Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Unmatured Default or Event of Default exists, to the payment of any amounts owing to any Borrower as a result of any judgment of a court of competent jurisdiction obtained by such Borrower against such Defaulting 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 Advances or Reimbursement Obligations in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Advances were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 3.02 were satisfied or waived, such payment shall be applied solely to pay the Advances of, and Reimbursement Obligations owed to, all non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Advances of, or Reimbursement Obligations owed to, such Defaulting Lender until such time as all Advances and funded and unfunded participations in L/C Obligations and Swing Line Advances are held by the Lenders pro rata in accordance with their respective Percentages without giving effect to any reallocation pursuant to subsection (c) above. 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 subsection (e) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto. 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 continue, then no Swing Line Lender shall be required to fund any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend creditSwing Line Advance, the Issuing and no Fronting Bank shall not be required to issue, amend or increase any Letter of Credit, unless the Issuing such Swing Line Lender or Fronting Bank, as the case may be, shall have entered into arrangements with the Parent applicable Borrower or such Lender, Lender reasonably satisfactory to such Swing Line Lender or Fronting Bank, as the Issuing Bank case may be, to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the Parent Borrower applicable Borrower, the Swing Line Lenders and the Issuing Bank each agrees, acting in good faith and a commercially reasonable manner, Fronting Banks all agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the LC Exposure obligation of such Lender to participate in Swing Line Advances made to such Borrower and Letters of Credit for the Lenders account of such Borrower 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 Advances of the other Lenders (other than Swing Line Advances) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans Advances in accordance with its CommitmentPercentage. If the Borrowers and the Administrative Agent agree in writing that a Lender is no longer a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein, such Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to payments made by or on behalf of the Borrowers while that Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly agreed in writing 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 1 contract
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 Revolving Commitment Fees shall cease to accrue on the unfunded portion unused amount of the Available Revolving Commitment of such Defaulting Lender pursuant to Section 2.10(a)Lender;
(b) the Revolving Commitment and the Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether 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, waiver or other modification pursuant to Section 10.02); provided, provided that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an any amendment, waiver or other modification requiring the consent of each all Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 10.02, require the consent of such Defaulting Lender or each Lender affected therebyin accordance with the terms hereof;
(c) if any LC Exposure exists at the time such any Revolving Lender becomes a Defaulting Lender Lender, then:
(i) all or any part of the LC Exposure of such Defaulting Lender (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.20(d) and 2.20(f)) shall be reallocated among the nonNon-Defaulting Revolving Lenders in accordance with their respective Commitments Applicable Percentages but only to the extent that the sum of all nonNon-Defaulting Revolving Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s LC Exposure (excluding the portion thereof referred to above) does not exceed the total sum of all nonNon-Defaulting Revolving Lenders’ Revolving Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Parent Borrower Borrowers shall within one Business Day following written notice by the Administrative Agent cash collateralize for the benefit of the Issuing Bank only such Borrower’s obligations corresponding to Banks the portion of such Defaulting Lender’s LC Exposure (after giving effect other than any portion thereof referred to any partial reallocation pursuant to in the parenthetical in such clause (i)) above) that has not been reallocated as set forth in such clause in accordance with the procedures set forth in Section 2.04(k2.20(n) for so long as such LC Exposure is outstanding;
(iii) if the Parent Borrower Borrowers cash collateralizes collateralize any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Parent Borrower Borrowers shall not be required to pay any participation fees to such Defaulting Lender pursuant to Section 2.04(f2.09(c) with respect to such portion of such Defaulting Lender’s LC Exposure during the period for so long as such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of the non-such Defaulting Lenders Lender is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.10(a2.09(a) and 2.04(f2.09(c) shall be adjusted in accordance with to give effect to such non-Defaulting Lenders’ Commitmentreallocation; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure that is subject to reallocation pursuant to clause (i) above is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all participation fees payable under Section 2.04(f2.09(c) with respect to such Defaulting Lender’s portion of its LC Exposure shall be payable to the applicable Issuing Bank Banks (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 issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Lender is a Defaulting Lender, no Issuing Bank shall be required to issue, amend amend, renew or increase extend any Letter of Credit, unless unless, in each case, it is satisfied that the related exposure and the such Defaulting Lender’s then outstanding LC Exposure will be 100% fully covered by the Revolving Commitments of the nonNon-Defaulting Revolving Lenders and/or cash collateral will be provided by the applicable Borrower Borrowers in accordance with Section 2.19(c)clause (c) above, and participating interests in any newly issued such issued, amended, renewed or increased extended Letter of Credit shall will be allocated among nonthe Non-Defaulting Revolving Lenders in a manner consistent with Section 2.19(c)(iclause (c)(i) above (and such Defaulting Lender shall not participate therein). If In the event that (ix) a Bankruptcy Event with respect to a Lender Parent of any a Revolving Lender shall occur have occurred following the date hereof Effective Date and for so long as such event Bankruptcy Event shall continue or (iiy) the 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 Revolving Lender commits to extend credit, the no Issuing Bank shall not be required to issue, amend amend, renew or increase extend any Letter of Credit, unless the unless, in each case, such Issuing Bank, as the case may be, Bank shall have entered into arrangements with the Parent Company and any other applicable Borrower or such Lender, Revolving Lender satisfactory to the such Issuing Bank to defease any risk to it in respect of such Revolving Lender hereunder. In the event that the Administrative Agent, the Parent Borrower Company and the each Issuing Bank each agrees, acting in good faith and a commercially reasonable manner, agree that a Defaulting Lender that is a Revolving Lender has adequately remedied all matters that caused such Revolving Lender to be a Defaulting Lender, then the LC 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 as the Administrative Agent shall determine may to be necessary in order for such Revolving Lender to hold such Revolving Loans in accordance with its CommitmentApplicable Percentage, and such Revolving Lender shall thereupon cease to be a Defaulting Lender (but shall not be entitled to receive any Revolving Commitment Fees accrued during the period when it was a Defaulting Lender, and all amendments, waivers or modifications effected without its consent in accordance with the provisions of Section 10.02 and this Section during such period shall be binding on it). The rights and remedies against, and with respect to, a Defaulting Lender under this Section are in addition to, and cumulative and not in limitation of, all other rights and remedies that the Administrative Agent, any Issuing Bank, any Lender or the Borrowers may at any time have against, or with respect to, such Defaulting Lender.
Appears in 1 contract
Sources: Credit Agreement (Trimble 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) fees shall cease to accrue on the unfunded portion of the Available Revolving Commitment of such Defaulting Lender pursuant to Section 2.10(a2.12(a);; and
(bii) the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 10.029.02); provided, provided that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendmentany waiver, waiver amendment or other modification requiring the consent of each Lender all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected thereby;Lenders shall require the consent of such Defaulting Lender.
(cb) if If any Swingline Exposure or LC Exposure exists at the time such a Lender becomes a Defaulting Lender then:
(i) all or any part of the such Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Commitments Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments;Revolving Commitments and (y) the conditions set forth in Section 4.02 are satisfied at such time; and
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Parent Borrower shall within one Business Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of the Issuing Bank only such Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(k2.06(j) for so long as such LC Exposure is outstanding;.
(iiic) if If the Parent Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) aboveSection 2.20(b), the Parent Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.04(f2.12(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if . If the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) aboveSection 2.20(b), then the fees payable to the Lenders pursuant to Sections 2.10(aSection 2.12(a) and 2.04(fSection 2.12(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Commitment; and
(v) if all or Applicable Percentages. If any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized nor reallocated pursuant to clause (i) or (ii) aboveSection 2.20(b), then, without prejudice to any rights or remedies of any the Issuing Bank or any other Lender hereunder, all facility fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.04(f2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank until and to the extent that such LC Exposure is reallocated cash collateralized and/or cash collateralized; andreallocated.
(d) so So long as such any Lender is a Defaulting Lender, no 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 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 applicable Borrower in accordance with Section 2.19(c2.20(b), 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 2.19(c)(i2.20(b)(i) (and such Defaulting Lender Lenders shall not participate therein). If .
(e) Any amount payable to a Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.18(d) but excluding Section 2.19(b)) shall, in lieu of being distributed to such Defaulting Lender, be retained by the Administrative Agent in a segregated account and, subject to any applicable requirements of law, be applied at such time or times as may be determined by the Administrative Agent (i) a Bankruptcy Event with respect first, to a Parent the payment of any amounts owing by such Defaulting Lender shall occur following to the date hereof and for so long as such event shall continue or Administrative Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to the Issuing Bank has a good faith belief that any or Swingline Lender has defaulted in fulfilling its obligations under one hereunder, (iii) third, if so determined by the Administrative Agent or more other agreements in which such Lender commits to extend credit, the requested by an Issuing Bank shall not or Swingline Lender, to be required to issue, amend held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in any Swingline Loan or increase any Letter of Credit, unless the Issuing Bank(iv) fourth, as the case may be, shall have entered into arrangements with the Parent Borrower or such Lender, satisfactory to the Issuing Bank to defease funding of any risk to it Loan in respect of which such Defaulting Lender hereunder. has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (v) fifth, if so determined by the Administrative Agent and the Borrower, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders or an Issuing 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, (vii) seventh, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, and (viii) eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is (x) a prepayment of the principal amount of any Loans or reimbursement obligations in respect of LC Disbursements for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 4.02 are satisfied, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Lender.
(f) In the event that the Administrative Agent, the Parent Borrower and Borrower, the Issuing Bank and the Swingline Lender each agrees, acting in good faith and a commercially reasonable manner, 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 CommitmentApplicable Percentage.
Appears in 1 contract
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 Commitment of such Defaulting Lender pursuant to Section 2.10(a2.12(a);
(b) the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.029.02); provided, that that, except as otherwise provided in Section 9.02, this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of each such Lender or each Lender directly affected thereby;
(c) if any Swingline Exposure or LC Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Commitments Applicable Percentages but only to the extent that 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;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Parent Borrower Company shall within one (1) Business Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of the relevant Issuing Bank Banks only such Borrower’s the Borrowers’ obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(k2.06(j) for so long as such LC Exposure is outstanding;
(iii) if the Parent Borrower Company cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Parent Borrower Borrowers shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.04(f2.12(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.10(aSection 2.12(a) and 2.04(fSection 2.12(b) shall be adjusted in accordance with such non-Defaulting Lenders’ CommitmentApplicable Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all letter of credit fees payable under Section 2.04(f2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable relevant Issuing Bank Banks until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Lender is a Defaulting Lender, no the Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Bank Banks 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 applicable Borrower Company in accordance with Section 2.19(c2.25(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 2.19(c)(i2.25(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 no Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless the Swingline Lender or such Issuing Bank, as the case may be, shall have entered into arrangements with the Parent Borrower Company or such Lender, satisfactory to the Swingline Lender or such Issuing Bank 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 Parent Borrower Company, the Swingline Lender and the each Issuing Bank each agrees, acting in good faith and a commercially reasonable manner, 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 CommitmentApplicable Percentage.
Appears in 1 contract
Sources: Credit Agreement (MTS Systems 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 Available Commitment of such Defaulting Lender pursuant to Section 2.10(a2.12(a);
(b) such Defaulting Lender shall not have the right to vote on any issue on which voting is required (other than to the extent expressly provided in Section 9.02(b)) and the Commitment |US-DOCS\131811068.10|| and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.02)9.02) or under any other Loan Document; provided, that that, except as otherwise provided in Section 9.02, this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of each such Lender or each Lender directly affected thereby;
(c) if any LC Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of the such LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Commitments Applicable Percentages but only to the extent that 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
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Parent Borrower shall within one Business Day following notice by the Administrative Agent cash collateralize for the benefit of the Issuing Bank Banks only such the Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(k2.06(j) for so long as such LC Exposure is outstanding;
(iii) if the Parent Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) abovethis Section 2.20(c), the Parent Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.04(f2.12(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) aboveSection 2.20(c), then the fees payable to the Lenders pursuant to Sections 2.10(aSection 2.12(a) and 2.04(fSection 2.12(b) shall be adjusted in accordance with such non-Defaulting Lenders’ CommitmentApplicable Percentages; andor
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized nor reallocated pursuant to clause (i) or (ii) aboveSection 2.20(c), then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all facility fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.04(f2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank Banks until and to the extent that such LC Exposure is reallocated cash collateralized and/or cash collateralized; andreallocated;
(d) so long as such Lender is a Defaulting Lender, no Issuing Bank shall be required to issue, amend issue or increase any Letter of Credit, unless it is reasonably 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 applicable |US-DOCS\131811068.10|| Borrower in accordance with Section 2.19(c2.20(c), and participating interests in LC Exposure related to any such newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.19(c)(i2.20(c)(i) (and such Defaulting Lender shall not participate therein). If ;
(e) 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 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 no such Issuing Bank shall not be required to issue, amend issue or increase any Letter of CreditCredit unless such Issuing Bank shall have entered into arrangements with the Borrower or such Lender, unless the reasonably satisfactory to such Issuing Bank, as the case may be, shall have entered into arrangements with the Parent Borrower or such Lender, satisfactory to the Issuing Bank to defease any risk to it in respect of such Lender hereunder. In ; and
(f) in the event and on the date that each of the Administrative Agent, the Parent Borrower and the each Issuing Bank each agrees, acting in good faith and a commercially reasonable manner, 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 other 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 CommitmentApplicable Percentage. Nothing contained herein shall be deemed to be a release of any claims of the Administrative Agent or the Borrower against any Defaulting Lender for its breach of any of its obligations under this Agreement.
Appears in 1 contract
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 Commitment of such Defaulting Lender pursuant to Section 2.10(a2.12(a);
(b) the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.029.02 or under any other Loan Document); provided, that this clause paragraph (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of each such Lender or each Lender affected thereby;
(c) if any Swingline Exposure or LC Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Commitments Applicable Percentages but only to the extent that (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the total of all non-Defaulting Lenders’ CommitmentsCommitments and (y) the conditions set forth in Section 4.02 are satisfied at such time;
(ii) if the reallocation described in clause paragraph (i) above cannot, or can only partially, be effected, the Parent Borrower shall within one Business Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of the Issuing Bank Banks only such the Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause paragraph (i) above) in accordance with the procedures set forth in Section 2.04(k2.06(j) for so long as such LC Exposure is outstanding;
(iii) if the Parent Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause paragraph (ii) above, the Parent Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.04(f2.12(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause paragraph (i) above, then the fees payable to the Lenders pursuant to Sections 2.10(a2.12(a) and 2.04(f2.12(b) shall be adjusted in accordance with such non-Defaulting Lenders’ CommitmentApplicable Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause paragraph (i) or (ii) above, then, without prejudice to any rights or remedies of any the Issuing Bank Banks or any other Lender hereunder, all letter of credit fees payable under Section 2.04(f2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless 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 applicable Borrower in accordance with Section 2.19(c2.21(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 Lenders in a manner consistent with Section 2.19(c)(i2.21(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to a Lender Parent of any Lender shall occur following the date hereof and for so long as such event shall continue or (ii) the Swingline Lender or the applicable 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 or increase any Letter of Credit, unless the Swingline Lender or such Issuing Bank, as the case may be, shall have entered into arrangements with the Parent Borrower or such Lender, satisfactory to the Swingline Lender or such Issuing Bank 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 Parent Borrower Borrower, the Swingline Lender and the applicable Issuing Bank Banks each agrees, acting in good faith and a commercially reasonable manner, 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 CommitmentApplicable Percentage.
Appears in 1 contract
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:: HOU:3135549.8
(a) fees shall cease to accrue on the unfunded portion of the Available Commitment of such Defaulting Lender pursuant to Section 2.10(a2.11(a);
(b) the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 10.029.02); provided, provided that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendmentany waiver, waiver amendment or other modification requiring the consent of each Lender all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected therebyLenders shall require the consent of such Defaulting Lender, unless the effect of same is to eliminate the Defaulting Lender's Commitment (which shall require only the consent of the Lenders that are not Defaulting Lenders);
(c) if any Swingline Exposure or LC Exposure exists at the time such a Lender becomes a Defaulting Lender then:
(i) all or any part of the such Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Commitments Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving ' Credit Exposures plus such Defaulting Lender’s 's Swingline Exposure and LC Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments' Commitments and (y) the conditions set forth in Section 4.02 are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Parent Borrower shall within one Business Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of the Issuing Bank only such Borrower’s obligations corresponding to such Defaulting Lender’s 's LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(k2.05(j) for so long as such LC Exposure is outstanding;
(iii) if the Parent Borrower cash collateralizes any portion of such Defaulting Lender’s 's LC Exposure pursuant to clause (ii) aboveSection 2.20(c), the Parent Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.04(f2.11(b) with respect to such Defaulting Lender’s 's LC Exposure during the period such Defaulting Lender’s 's LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) aboveSection 2.20(c), then the fees payable to the Lenders pursuant to Sections 2.10(aSection 2.11(a) and 2.04(fSection 2.11(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Commitment' Applicable Percentages; and
(v) if all or any portion of such Defaulting Lender’s 's LC Exposure is neither reallocated nor cash collateralized nor reallocated pursuant to clause (i) or (ii) aboveSection 2.20(c), then, without prejudice to any rights or remedies of any the Issuing Bank or any other Lender hereunder, all facility fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender's Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.04(f2.11(b) with respect to such Defaulting Lender’s 's LC HOU:3135549.8 Exposure shall be payable to the applicable Issuing Bank until and to the extent that such LC Exposure is reallocated cash collateralized and/or cash collateralizedreallocated; and
(d) so long as such any Lender is a Defaulting Lender, no 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 reasonably 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 applicable Borrower in accordance with Section 2.19(c2.20(c), 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 2.19(c)(i2.20(c)(i) (and such Defaulting Lender 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, as the case may be, shall have entered into arrangements with the Parent Borrower or such Lender, satisfactory to the Issuing Bank to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the Parent Borrower and Borrower, the Issuing Bank and the Swingline Lender each agrees, acting in good faith and a commercially reasonable manner, 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 '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 CommitmentApplicable Percentage.
Appears in 1 contract
Sources: Revolving Credit Agreement (Rackspace Hosting, 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 Available Commitment of such Defaulting Lender pursuant to Section 2.10(a);the extent, and during the period, such Lender is a Defaulting Lender; and
(b) the Commitment and 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 have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 10.029.02, except for any amendment or waiver described in Section 9.02(b)(i), (ii) or (iii)); providedprovided that any waiver, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver amendment or other modification requiring the consent of each Lender all Lenders, two-thirds of the Lenders or each affected Lender which affects such Defaulting Lender differently than other Lenders or affected thereby;Lenders (as applicable) shall require the consent of such Defaulting Lender.
(c) if any LC Exposure exists at the time such a Lender becomes a Defaulting Lender then:
(i) all or any part of the such LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Commitments Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s LC Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments, (y) no non-Defaulting Lender’s Credit Exposure will exceed such Lender’s Commitment, and (z) the conditions set forth in Section 4.02 are satisfied at such time (and unless the Borrower has 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);
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Parent Borrower shall shall, without prejudice to any right or remedy available to it hereunder or under law, within one three Business Day Days following notice by the Administrative Agent cash collateralize for the benefit of the Issuing Bank only such Borrower’s obligations corresponding to Agent, Cash Collateralize such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(k) for so long as such LC Exposure is outstanding;
(iii) if the Parent Borrower cash collateralizes Cash Collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Parent Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.04(f2.10(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralizedCash Collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections Section 2.10(a) and 2.04(fSection 2.10(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Commitment; andApplicable Percentages;
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither Cash Collateralized nor reallocated nor cash collateralized pursuant to clause (i) or (ii) abovethis Section 2.17(c), then, without prejudice to any rights or remedies of any the Issuing Bank or any other Lender hereunder, all facility fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.04(f2.10(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank until and to the extent that such LC Exposure is reallocated Cash Collateralized and/or cash collateralizedreallocated; and
(dvi) so long as such 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 is arising from that Lender having become a Defaulting Lender, no Issuing Bank shall be required to issue, amend or increase including any Letter claim of Credit, unless it is satisfied that the related exposure and the a non-Defaulting Lender as a result of such non-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 applicable Borrower in accordance with Section 2.19(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 2.19(c)(i) (and exposure following 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 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, as the case may be, shall have entered into arrangements with the Parent Borrower or such Lender, satisfactory to the Issuing Bank to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the Parent Borrower and the Issuing Bank each agrees, acting in good faith and a commercially reasonable manner, 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 Commitment.reallocation
Appears in 1 contract
Sources: Senior Secured Revolving Credit Agreement (Capital Southwest 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 Available Commitment of such Defaulting Lender pursuant to Section 2.10(a2.12(a);
(b) the Revolving Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether 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, waiver or other modification pursuant to Section 10.029.02, except as expressly required under Section 9.02); provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of each Lender or each Lender affected thereby;
(c) if any Swingline Exposure or LC Exposure exists at the time such Revolving Lender becomes a Defaulting Lender Lender, then:
(i) all or any part of the Swingline Exposure (other than (x) any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c) and (y) the portion of the Swingline Exposure referred to in clause (b) of the definition thereof) and LC Exposure (other than any portion thereof attributable to unreimbursed 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 shall be reallocated among the non-Defaulting Lenders in accordance with their respective Commitments 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 does not exceed the total sum of all non-Defaulting Lenders’ CommitmentsRevolving Commitments and (B) the Revolving Exposure of each non-Defaulting Lender immediately after giving effect to such reallocation would not exceed the Revolving Commitment of such non-Defaulting Lender; provided that no reallocation under this clause (i) 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;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Parent Borrower shall shall, without prejudice to any right or remedy available to it hereunder or under law, within one Business Day following notice by the Administrative Agent (A) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (B) second, cash collateralize for the benefit of the Issuing Bank only such Borrower’s obligations corresponding to Banks the portion of such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) that has not been reallocated in accordance with the procedures set forth in Section 2.04(k2.05(i) for so long as such LC Exposure is outstanding;
(iii) if the Parent Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Parent Borrower shall not be required to pay any participation fees to such Defaulting Lender pursuant to Section 2.04(f2.12(b) with respect to such portion of such Defaulting Lender’s LC Exposure during the period for so long as such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of the non-such Defaulting Lenders Lender is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.10(a2.12(a) and 2.04(f2.12(b) shall be adjusted in accordance with to give effect to such non-Defaulting Lenders’ Commitmentreallocation; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all participation fees payable under Section 2.04(f2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend amend, renew or increase extend any Letter of Credit, unless unless, in each case, it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) or LC Exposure Exposure, as applicable, will be 100% fully covered by the Revolving Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the applicable Borrower in accordance with Section 2.19(c2.20(c), and participating interests in any newly issued such funded Swingline Loan or increased in any such issued, amended, renewed or extended Letter of Credit shall will be allocated among the non-Defaulting Lenders in a manner consistent with Section 2.19(c)(i2.20(c)(i) (and such Defaulting Lender shall not participate therein). If In the event that (i) a Bankruptcy Event or Bail-In Action with respect to a Revolving Lender Parent of any Lender shall occur following the date hereof and for so long as such event Bankruptcy Event or Bail-In Action shall continue or (ii) the any 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 such Swingline Lender shall not be required to fund any Swingline Loan and such Issuing Bank shall not be required to issue, amend amend, renew or increase extend any Letter of Credit, unless the such Swingline Lender or such Issuing Bank, as the case may beapplicable, shall have entered into arrangements with the Parent Borrower or such the applicable Revolving Lender, satisfactory to the such Swingline Lender or such Issuing Bank Bank, as applicable, to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the Parent Borrower Borrower, each Swingline Lender and the each Issuing Bank each agrees, acting in good faith and a commercially reasonable manner, agrees that a Defaulting Lender has adequately remedied all matters that caused such the applicable Revolving 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 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 as the Administrative Agent shall determine may be necessary in order for such Revolving Lender to hold such Revolving Loans in accordance with its CommitmentApplicable Percentage; 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 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 1 contract
Sources: Amendment No. 4 to the Second Amended and Restated Credit Agreement (Chemours 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 pursuant to Section 3.05(a) shall cease to accrue on the unfunded unused portion of the Available Commitment of such Defaulting Lender pursuant to Section 2.10(a)Lender;
(b) the Commitment and Revolving the principal amount of the Loans and participation interests in Letters of Credit Exposure and Swingline Loans of such Defaulting Lender shall not be included in determining whether all Lenders, the Required Lenders or the Majority Lenders have taken or may take any action hereunder (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 10.0212.02); provided, provided that this clause any waiver, amendment or modification (bi) shall not apply to that would increase the vote Commitment or the Maximum Credit Amount of a such Defaulting Lender in the case of an amendment, waiver or other modification (ii) requiring the consent of each Lender all Lenders or each adversely affected Lender which affects such Defaulting Lender differently than all other Lenders or all other adversely affected therebyLenders, as the case may be, shall require the consent of such Defaulting Lender;
(c) if any Swingline Exposure or LC Exposure exists at the time such a Lender becomes a Defaulting Lender then:
(i) all or any part of the such Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Commitments but only to the extent (A) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures Exposure plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the total of all non-Defaulting Lenders’ CommitmentsCommitments and (B) the conditions set forth in Section 6.02 are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Parent Borrower shall within one two (2) Business Day Days following notice by the Administrative Agent cash collateralize for the benefit of the Issuing Bank only such Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure and Swingline Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) for so long as such LC Exposure and Swingline Exposure are outstanding and the relevant Defaulting Lender continues to be a Defaulting Lender in accordance with the procedures set forth in Section 2.04(k) for so long as such LC Exposure is outstanding2.08(j);
(iii) if the Parent Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) abovethis Section 2.10(c), the Parent Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.04(f3.05(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if the applicable LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) abovethis Section 2.10(c), then the fees payable to the Lenders pursuant to Sections 2.10(aSection 3.05(a) and 2.04(fSection 3.05(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Commitmentreallocated Commitment and LC Exposure; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized nor reallocated pursuant to clause (i) or (ii) abovethis Section 2.10(c), then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) under Section 3.05(a) and letter of credit fees payable under Section 2.04(f3.05(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank until and to the extent that such LC Exposure is reallocated cash collateralized and/or cash collateralizedreallocated; and
(d) so long as such any Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be one hundred percent (100% %) covered by the Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the applicable Borrower in accordance with Section 2.19(c2.10(c), 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 2.19(c)(i2.10(c)(i) (and such any 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 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, as the case may be, shall have entered into arrangements with the Parent Borrower or such Lender, satisfactory to the Issuing Bank to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the Parent Borrower Borrower, the Swingline Lender, and the each Issuing Bank each agrees, acting in good faith and a commercially reasonable manner, agrees that a Defaulting Lender has adequately remedied all matters that caused such Defaulting Lender to be a Defaulting Lender, then the LC Exposure and Swingline Exposure of the non-Defaulting Lenders shall be readjusted to reflect the inclusion of such Defaulting Lender’s Commitment and on such date such Defaulting Lender shall purchase at par such of the Loans of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Defaulting Lender to hold such Loans in accordance with its Commitment.
Appears in 1 contract
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 Commitment of such Defaulting Lender pursuant to Section 2.10(a2.12(a);
(b) the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.029.02); provided, that that, except as otherwise provided in Section 9.02, this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of each such Lender or each Lender directly affected thereby;
(c) if any LC Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of the LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Commitments Applicable Percentages but only to the extent (A) 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’ CommitmentsCommitments and (B) no Default has occurred and is continuing;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Parent Borrower shall within one (1) Business Day following notice by the Administrative Agent cash collateralize for the benefit of the Issuing Bank only such the Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(k2.06(j) for so long as such LC Exposure is outstanding;
(iii) if the Parent Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Parent Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.04(f2.12(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.10(a2.12(a) and 2.04(fSection 2.12(b) shall be adjusted in accordance with such non-Defaulting Lenders’ CommitmentApplicable Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any the Issuing Bank or any other Lender hereunder, all letter of credit fees payable under Section 2.04(f2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Lender is a Defaulting Lender, no 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 applicable Borrower in accordance with Section 2.19(c2.20(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 2.19(c)(i2.20(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to a Lender Parent of any Lender shall occur following the date hereof and for so long as such event shall continue or (ii) the 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, as the case may be, Bank shall have entered into arrangements with the Parent Borrower or such Lender, satisfactory to the Issuing Bank to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the Parent Borrower and the Issuing Bank each agrees, acting in good faith and a commercially reasonable manner, 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 CommitmentApplicable Percentage.
Appears in 1 contract
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 Credit Commitment of such Defaulting Lender pursuant to Section 2.10(a2.11(a);
(b) the Revolving Credit Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.02); provided, provided that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of each such Lender or each Lender affected thereby;
(c) if any Swingline Exposure or LC Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Commitments Applicable Percentages 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’ Revolving Credit Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Parent Borrower Company shall within one (1) Business Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of each applicable Issuing Lender only the Issuing Bank only such Borrower’s Borrowers’ obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(k2.05(k) for so long as such LC Exposure is outstanding;
(iii) if the Parent Borrower Company cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Parent Borrower Borrowers shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.04(f2.11(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.10(a) and 2.04(fSection 2.11(b) shall be adjusted in accordance with such non-Defaulting Lenders’ CommitmentApplicable Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any the applicable Issuing Bank Lender or any other Lender hereunder, all facility fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Revolving Credit Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.04(f2.11(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank Lender until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Bank Lender shall be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure Swingline Exposure or LC Exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the applicable Borrower Company in accordance with Section 2.19(c2.20(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 2.19(c)(i2.20(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 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, as the case may be, shall have entered into arrangements with the Parent Borrower or such Lender, satisfactory to the Issuing Bank to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the Parent Borrower Company, the Swingline Lender and the each Issuing Bank Lender each agrees, acting in good faith and a commercially reasonable manner, 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 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 CommitmentApplicable Percentage.
Appears in 1 contract
Sources: Credit Agreement (Cambrex 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) fees shall cease to accrue on the unfunded portion of the Available Revolving Commitment of such Defaulting Lender pursuant to Section 2.10(a2.12(a);
(b) the Revolving Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.029.02); provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of each such Lender or each Lender affected thereby;
(c) if any Swingline Exposure or LC Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Commitments Applicable Revolving Percentages 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’ Revolving Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Parent Borrower Company shall within one (1) Business Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of the relevant Issuing Bank Banks only such Borrower’s the Revolving Borrowers’ obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(k2.06(j) for so long as such LC Exposure is outstanding;
(iii) if the Parent Borrower Company cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Parent Borrower Revolving Borrowers shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.04(f2.12(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Revolving Lenders pursuant to Sections 2.10(a2.12(a) and 2.04(fSection 2.12(b) shall be adjusted in accordance with such non-Defaulting Lenders’ CommitmentApplicable Revolving Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all letter of credit fees payable under Section 2.04(f2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable relevant Issuing Bank Banks until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Lender is a Defaulting Lender, no Swingline Lender shall be required to fund any Swingline Loan and the Issuing Bank Banks 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 applicable Borrower Company in accordance with Section 2.19(c2.24(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 2.19(c)(i2.24(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to a Lender Parent of any Lender shall occur following the date hereof Restatement Effective Date and for so long as such event shall continue or (ii) the any 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 no Swingline Lender shall be required to fund any Swingline Loan and no Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless the such Swingline Lender or such Issuing Bank, as the case may be, shall have entered into arrangements with the Parent Borrower Company or such Lender, satisfactory to such Swingline Lender or such Issuing Bank, as the Issuing Bank case may be, to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the Parent Borrower Company, each Swingline Lender and the each Issuing Bank each agrees, acting in good faith and a commercially reasonable manner, 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 CommitmentApplicable Revolving Percentage.
Appears in 1 contract
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 Available Revolving Commitment of such Defaulting Lender pursuant to Section 2.10(a2.12(a);
(b) the Revolving Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether 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, waiver or other modification pursuant to Section 10.029.02); provided, provided that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an any amendment, waiver or other modification requiring the consent of each all Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender or each Lender affected therebyin accordance with the terms hereof;
(c) if any Swingline Exposure or LC Exposure exists at the time such Revolving Lender becomes a Defaulting Lender then:
(i) all or the Swingline Exposure (other than any part of the portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c)) and LC Exposure (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(d) and 2.05(e)) of such Defaulting Lender shall be reallocated among the nonNon-Defaulting Lenders in accordance with their respective Commitments Applicable Revolving Percentages but only to the extent that the sum of all nonNon-Defaulting Lenders’ Revolving Credit Exposures plus after giving effect to such Defaulting Lender’s LC Exposure does reallocation would not exceed the total sum of all nonNon-Defaulting Lenders’ Revolving Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Parent Borrower shall within one Business Day following notice by the Administrative Agent (A) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (B) second, cash collateralize for the benefit of the Issuing Bank only such Borrower’s obligations corresponding to Banks the portion of such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) that has not been reallocated in accordance with the procedures set forth in Section 2.04(k2.05(i) for so long as such LC Exposure is outstanding;
(iii) if the Parent Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Parent Borrower shall not be required to pay any participation fees to such Defaulting Lender pursuant to Section 2.04(f2.12(b) with respect to such portion of such Defaulting Lender’s LC Exposure during the period for so long as such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of the non-such Defaulting Lenders Lender is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.10(a) and 2.04(fSection 2.12(b) shall be adjusted in accordance with to give effect to such non-Defaulting Lenders’ Commitmentreallocation; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all participation fees payable under Section 2.04(f2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend amend, renew or increase extend any Letter of Credit, unless unless, in each case, it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure or LC Exposure Exposure, as applicable, will be 100% fully covered by the Revolving Commitments of the nonNon-Defaulting Lenders and/or cash collateral will be provided by the applicable Borrower in accordance with Section 2.19(c2.24(c), and participating interests in any newly issued such funded Swingline Loan or increased in any such issued, amended, renewed or extended Letter of Credit shall will be allocated among nonthe Non-Defaulting Lenders in a manner consistent with Section 2.19(c)(i2.24(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 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, as the case may be, shall have entered into arrangements with the Parent Borrower or such Lender, satisfactory to the Issuing Bank to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, Parent, the Parent Borrower Borrower, the Swingline Lender and the each Issuing Bank each agrees, acting in good faith and a commercially reasonable manner, 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 Revolving 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 Revolving Lenders as the Administrative Agent shall determine may be necessary in order for such Revolving Lender to hold such Loans in accordance with its CommitmentApplicable Revolving Percentage.
Appears in 1 contract
Sources: Amendment and Restatement Agreement (American Axle & Manufacturing Holdings 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 Available Revolving Commitment of such Defaulting Lender pursuant to Section 2.10(a2.12(a);
(b) the Revolving Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders, Required Revolving Lenders or Required Financial Covenant Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.02); provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of each such Revolving Lender or each Lender affected thereby;
(c) if any LC Exposure exists at the time such Revolving Lender becomes a Defaulting Lender then:
(i) all or any part of the LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Commitments Applicable Percentages but only to the extent the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus Exposure (after giving effect to such Defaulting Lender’s LC Exposure reallocation) does not exceed the total of all non-Defaulting Lenders’ Revolving Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Parent Borrower shall within one Business Day following notice by the Administrative Agent cash collateralize Agent, Cash Collateralize for the benefit of the Issuing Bank Lenders only such the Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(k) for so long as such LC Exposure is outstanding;
(iii) if the Parent Borrower cash collateralizes Cash Collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Parent Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.04(f2.12(b)(i) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralizedCash Collateralized;
(iv) if the LC Exposure of such Defaulting Lender is reallocated to the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Revolving Lenders pursuant to Sections 2.10(aSection 2.12(a) and 2.04(fSection 2.12(b)(i) shall be adjusted in accordance with such non-Defaulting Lenders’ CommitmentApplicable Percentages after giving effect to the reallocation of such Defaulting Lender’s LC Exposure pursuant to clause (i) above; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized Cash Collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank Lender or any other Revolving Lender hereunder, all fees payable under Section 2.04(f2.12(b)(i) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank Lenders until and to the extent that such LC Exposure is reallocated and/or cash collateralizedCash Collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender, no Issuing Bank 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 applicable Borrower in accordance with Section 2.19(c2.20(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 2.19(c)(i2.20(c)(i) (and such Defaulting Lender shall not participate therein). If ;
(i) a Bankruptcy Event or a Bail-In Action with respect to a Lender Parent of any Revolving Lender shall occur following the date hereof Third Restatement Effective Date and for so long as such event shall continue or (ii) the any Issuing Bank 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 such Issuing Bank Lender shall not be required to issue, amend or increase any Letter of Credit, unless the such Issuing Bank, as the case may be, Lender shall have entered into arrangements with the Parent Borrower or such Revolving Lender, satisfactory to the such Issuing Bank Lender to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the Parent Borrower and the Issuing Bank Lenders each agrees, acting in good faith and a commercially reasonable manner, 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 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 as the Administrative Agent shall determine may be necessary in order for such Revolving Lender to hold such Revolving Loans in accordance with its CommitmentApplicable Percentage.
Appears in 1 contract
Sources: Credit Agreement (Griffon 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 Available Commitment of such Defaulting Lender pursuant to Section 2.10(a2.12(a);
(b) the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.029.02); provided, that that, except as otherwise provided in Section 9.02, this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of each such Lender or each Lender directly affected thereby;
(c) if any Swingline Exposure or LC Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Commitments Applicable Percentages 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’ Revolving Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Parent Borrower shall within one (1) Business Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of the Issuing Bank only such the Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(k2.06(j) for so long as such LC Exposure is outstanding;
(iii) if the Parent Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Parent Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.04(f2.12(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.10(aSection 2.12(a) and 2.04(fSection 2.12(b) shall be adjusted in accordance with such non-Defaulting Lenders’ CommitmentApplicable Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any the Issuing Bank or any other Lender hereunder, all letter of credit fees payable under Section 2.04(f2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Lender is a Defaulting Lender, no 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 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 applicable Borrower in accordance with Section 2.19(c2.21(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 2.19(c)(i2.21(c)(i) (and such Defaulting Lender shall not participate therein). If .
(i) a Bankruptcy Event with respect to a Lender Parent of any Lender shall occur following the date hereof and for so long as such event shall continue or (ii) the 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 Parent Borrower or such Lender, satisfactory to the Swingline Lender or the Issuing Bank 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 Parent Borrower Borrower, the Swingline Lender and the Issuing Bank each agrees, acting in good faith and a commercially reasonable manner, 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 CommitmentApplicable Percentage.
Appears in 1 contract
Sources: Credit Agreement (Angiodynamics 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 Commitment of such Defaulting Lender pursuant to Section 2.10(a2.12(a);
(b) the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.029.02); providedprovided that, that except as otherwise provided in Section 9.02, this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of each such Lender or each Lender directly affected thereby;
(c) if any Swingline Exposure or LC Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) shall be reallocated among the non-Defaulting Lenders in accordance with their respective Commitments Applicable Percentages but only to the extent (A) 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, (B) each non-Defaulting Lender’s Revolving Credit Exposure does not exceed such non-Defaulting Lender’s Commitment and (C) no Event of Default has occurred and is continuing;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Parent Borrower Company shall within one (1) Business Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of the Issuing Bank Banks only such Borrowerthe Company’s obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(k2.06(j) for so long as such LC Exposure is outstanding;
(iii) if the Parent Borrower Company cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Parent Borrower Company shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.04(f2.12(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.10(aSection 2.12(a) and 2.04(fSection 2.12(b) shall be adjusted in accordance with such non-Defaulting Lenders’ CommitmentApplicable Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any the Issuing Bank Banks or any other Lender hereunder, all letter of credit fees payable under Section 2.04(f2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank Banks until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless 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 applicable Borrower Company in accordance with Section 2.19(c2.24(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 2.19(c)(i2.24(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event or a Bail-In Action with respect to a Lender Parent of any Lender shall occur following the date hereof and for so long as such event shall continue or (ii) the 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 or increase any Letter of Credit, unless the Swingline Lender or such Issuing Bank, as the case may be, shall have entered into arrangements with the Parent Borrower Company or such Lender, satisfactory to the Swingline Lender or such Issuing Bank 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 Parent Borrower Company, the Swingline Lender and the Issuing Bank Banks each agrees, acting in good faith and a commercially reasonable manner, 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 CommitmentApplicable Percentage.
Appears in 1 contract
Sources: Credit Agreement (Photronics 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 Commitment of such Defaulting Lender pursuant to Section 2.10(a2.07(a);
(b) the Commitment and Revolving Credit Exposure Outstanding Amount and outstanding Term Loans of such Defaulting Lender shall not be included in determining whether the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.0211.01); provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of each such Lender or each Lender affected thereby;
(c) with respect to any Revolving Lender becoming a Defaulting Lender, if any Swingline Exposure or LC Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Commitments Revolving Percentages but only to the extent that (x) the sum of all non-Defaulting Lenders’ Outstanding Amounts under such Revolving Credit Exposures Commitments plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the total of all non-Defaulting Lenders’ CommitmentsRevolving Commitments and (y) the conditions set forth in Section 4.02 are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Parent Borrower and the applicable Designated Borrowers shall within one Business Day following notice by the Administrative Agent Agent, (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of the Issuing Bank Banks only such Borrower’s the obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(k2.15(j) for so long as such LC Exposure is outstanding;
(iii) if the Parent Borrower or a Designated Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Parent Borrower or such Designated Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.04(f2.07(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.10(aSection 2.07(a) and 2.04(fSection 2.07(b) shall be adjusted in accordance with such non-Defaulting Lenders’ CommitmentRevolving Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all letter of credit fees payable under Section 2.04(f2.07(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Lender is a Defaulting Lender, no 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 and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Revolving Commitments of the non-Defaulting Lenders that are Revolving Lenders and/or cash collateral will be provided by the Borrower and the applicable Borrower Designated Borrowers in accordance with Section 2.19(c2.16(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 Lenders that are Revolving Lenders in a manner consistent with Section 2.19(c)(i2.16(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 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, as the case may be, shall have entered into arrangements with the Parent Borrower or such Lender, satisfactory to the Issuing Bank to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative AgentAgent and the Borrower and, with respect to a Revolving Lender that is a Defaulting Lender, the Parent Borrower Swingline Lender and the Issuing Bank Banks each agrees, acting in good faith and a commercially reasonable manner, 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 relevant Lenders shall be readjusted to reflect the inclusion of such Lender’s Revolving Commitment (if any) 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 CommitmentRevolving Percentage or Applicable Percentage, as the case may be.
Appears in 1 contract
Sources: Credit Agreement (Cognizant Technology Solutions 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 Available Revolving Loan Commitment of such Defaulting Lender pursuant to Section 2.10(a2.12(a);
(b) the Commitment and Commitment, Revolving Credit Exposure and Term Loans of such Defaulting Lender shall not be included in determining whether the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.029.02); provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of each such Lender or each Lender affected thereby;
(c) if any Swingline Exposure or LC Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Commitments Applicable Percentages 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’ Revolving Loan Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Parent Borrower shall within one three Business Day 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 such the Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(k2.05(j) for so long as such LC Exposure is outstanding;
(iii) if the Parent Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Parent Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.04(f2.12(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.10(aSection 2.12(a) and 2.04(fSection 2.12(b) shall be adjusted in accordance with such non-Defaulting Lenders’ CommitmentApplicable Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any the Issuing Bank or any other Lender hereunder, all letter of credit fees payable under Section 2.04(f2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and;
(d) so long as such Lender is a Defaulting Lender, no 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 and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Revolving Loan Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the applicable Borrower in accordance with Section 2.19(c2.20(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 Lenders in a manner consistent with Section 2.19(c)(i2.20(c)(i) (and such Defaulting Lender shall not participate therein). If ; and
(ie) a Bankruptcy Event with respect 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 a Parent Article VII or otherwise, and including any amounts made available to the Administrative Agent by such Defaulting Lender pursuant to Section 9.08), shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender shall occur following to the date hereof and for so long as Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such event shall continue or (ii) Defaulting Lender to the Issuing Bank has a good faith belief that any or Swingline Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credithereunder; third, the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless if requested by the Issuing Bank, to be held as cash collateral for LC Exposure; fourth, as the case Borrower may berequest (so long as no Default or Event of Default exists), shall have entered into arrangements with to the Parent Borrower 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 non-interest bearing deposit account and released in order to satisfy obligations of such Defaulting Lender to fund Loans under this Agreement; sixth, to the payment of any amounts owing to the Lenders, Issuing Bank or such Lender, satisfactory to Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender or the Issuing Bank or Swingline Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default exists, to defease the payment of any risk amounts owing to it 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 LC Disbursements in respect of which such Defaulting Lender hereunderhas not fully funded its appropriate share and (y) such Loans or LC Disbursements were made 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. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 2.20(e) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto. In the event that the Administrative Agent, the Parent Borrower Borrower, the Swingline Lender and the Issuing Bank each agrees, acting in good faith and a commercially reasonable manner, 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 Loan 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 CommitmentApplicable Percentage.
Appears in 1 contract
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 2.10(a2.12(a);
(b) the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 10.029.02); providedprovided that any waiver, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver amendment or other modification requiring the consent of each Lender all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected therebyLenders shall require the consent of such Defaulting Lender;
(c) if any Swingline Exposure or LC Exposure exists at the time such a Lender becomes a Defaulting Lender then:
: (i) all or any part of the such Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Commitments Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus plus, without duplication, such Defaulting Lender’s Swingline Exposure and LC Exposure Exposure, does not exceed the total of all non-Defaulting Lenders’ Commitments;
Commitments and (y) the conditions set forth in Section 2.01 are satisfied at such time; (ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Parent Borrower shall within one Business Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of the Issuing Bank only such Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(k2.06(j) for so long as such LC Exposure is outstanding;
; (iii) if the Parent Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) abovethis Section 2.22(c), the Parent no Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.04(f2.12(b) with respect to such Defaulting Lender’s LC Exposure during the period such Specified Defaulting Lender’s LC Exposure is cash collateralized;
; (iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) abovethis Section 2.22(c)), then the fees payable to the Lenders pursuant to Sections 2.10(aSection 2.12(a) and 2.04(fSection 2.12(b) shall be adjusted in accordance with such non-Defaulting Lenders’ CommitmentApplicable Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized nor reallocated pursuant to clause (i) or (ii) abovethis Section 2.22(c), then, without prejudice to any rights or remedies of any the Issuing Bank or any other Lender hereunder, all facility fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.04(f2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank until and to the extent that such LC Exposure is reallocated cash collateralized and/or cash collateralizedreallocated; and (vi) the Administrative Agent shall promptly notify the Lenders of any reallocation described in this Section 2.22(c); and
(d) so long as such any Lender is a Defaulting Lender, no the Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Bank shall not be required to issue, amend extend the expiry date of or increase the amount of 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 applicable Borrower Borrowers in accordance with Section 2.19(c2.22(c), 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 2.19(c)(i2.22(c) (i) (and such Defaulting Lender Lenders shall not participate therein). If ; and
(ie) 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, as the case may be, shall have entered into arrangements with the Parent Borrower or such Lender, satisfactory to the Issuing Bank to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the Parent Borrower and Borrower, the Issuing Bank and the Swingline Lender each agrees, acting in good faith and a commercially reasonable manner, 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 Commitments 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 CommitmentApplicable Percentage.
Appears in 1 contract
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 Commitment of such Defaulting Lender pursuant to Section 2.10(a2.12(a);
(b) the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.029.02); provided, that that, except as otherwise provided in Section 9.02, this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of each such Lender or each Lender directly affected thereby;
(c) if any Swingline Exposure or LC Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) shall be reallocated among the non-Defaulting Lenders in accordance with their respective Commitments Applicable Percentages but only to the extent the sum of all that such reallocation does not, as to any non-Defaulting Lenders’ Revolving Credit Exposures plus Lender, cause such non-Defaulting Lender’s LC Revolving Credit Exposure does not to exceed the total of all non-Defaulting Lenders’ Commitmentsits Revolving Commitment;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Parent Borrower Borrowers shall within one (1) Business Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of the applicable Issuing Bank Banks only such each Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(k2.06(j) for so long as such LC Exposure is outstanding;
(iii) if the Parent Borrower Borrowers cash collateralizes collateralize any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Parent Borrower Borrowers shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.04(f2.12(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.10(a) and 2.04(fSection 2.12(b) shall be adjusted in accordance with such non-Defaulting Lenders’ CommitmentApplicable Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all facility fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.04(f2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable ratably to the applicable Issuing Bank Banks until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Lender is a Defaulting Lender, no the Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Bank Banks 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 applicable Borrower Borrowers in accordance with Section 2.19(c2.21(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 2.19(c)(i2.21(c)(i) (and such Defaulting Lender shall not participate therein). If .
(i) a Bankruptcy Event or a Bail-In Action with respect to a Lender Parent of any Lender shall exist or occur following the date hereof Effective Date and for so long as such event shall continue or (ii) the Swingline Lender or the Issuing Bank has Banks have 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 Banks shall not be required to issue, amend or increase any Letter of Credit, unless the Swingline Lender or the Issuing BankBanks, as the case may be, shall have entered into arrangements with the Parent Borrower Company or such Lender, satisfactory to the Swingline Lender or the Issuing Bank Banks, 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 Parent Borrower Company, the Swingline Lender and the Issuing Bank Banks each agrees, acting in good faith and a commercially reasonable manner, 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 CommitmentApplicable Percentage, whereupon such Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers while that Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.
Appears in 1 contract
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 Commitment of such Defaulting Lender pursuant to Section 2.10(a2.12(a);
(b) the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.029.02); provided, that that, except as otherwise provided in Section 9.02, this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of each such Lender or each Lender directly affected thereby;
(c) if any Swingline Exposure or LC Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Commitments Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the total of all non-Defaulting Lenders’ CommitmentsCommitments and (y) the conditions set forth in Section 4.02 are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Parent Borrower shall within one (1) Business Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of the relevant Issuing Bank only such the Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(k2.06(j) for so long as such LC Exposure is outstanding;
(iii) if the Parent Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Parent Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.04(f2.12(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.10(a2.12(a) and 2.04(f2.12(b) shall be adjusted in accordance with such non-Defaulting Lenders’ CommitmentApplicable Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all facility fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.04(f2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable relevant Issuing Bank until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Lender is a Defaulting Lender, no the Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Bank Banks 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 applicable Borrower in accordance with Section 2.19(c2.22(c), 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 2.19(c)(i2.22(c)(i) (and such Defaulting Lender shall not participate therein). If Subject to Section 9.18, 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.
(i) a Bankruptcy Event or a Bail-In Action with respect to a Lender Parent of any Lender shall occur following the date hereof and for so long as such event shall continue or (ii) the 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 or increase any Letter of Credit, unless the Swingline Lender or such Issuing Bank, as the case may be, shall have entered into arrangements with the Parent Borrower or such Lender, satisfactory to the Swingline Lender or such Issuing Bank 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 Parent Borrower Borrower, the Issuing Banks and the Issuing Bank Swingline Lender each agrees, acting in good faith and a commercially reasonable manner, 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 CommitmentApplicable Percentage.
Appears in 1 contract
Sources: Credit Agreement (Tredegar 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 Available Commitment of such Defaulting Lender pursuant to Section 2.10(a2.12(a);
(b) the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.029.02); provided, provided that that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of each such Lender or each Lender affected thereby;
(c) if any Swingline Exposure or LC Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Commitments Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the total of all non-Defaulting Lenders’ CommitmentsRevolving Commitments and (y) the conditions set forth in Section 4.02 are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Parent Borrower Company shall within one (1) Business Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of the Issuing Bank only such Borrower’s the Borrowers’ obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(k2.06(j) for so long as such LC Exposure is outstanding;
(iii) if the Parent Borrower Company cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Parent Borrower Company shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.04(f2.12(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (iii) above, then the fees payable to the Lenders pursuant to Sections 2.10(a) and 2.04(fSection 2.12(b) shall be adjusted in accordance with such non-Defaulting Lenders’ CommitmentApplicable Percentages; andor
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized nor reallocated pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any the Issuing Bank or any other Lender hereunder, all facility fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.04(f2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank until and to the extent that such LC Exposure is reallocated cash collateralized and/or cash collateralizedreallocated; and
(d) so long as such Lender is a Defaulting Lender, no 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 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 applicable Borrower Company in accordance with Section 2.19(c2.25(c), 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 2.19(c)(i2.25(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 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 Parent Borrower or such Lender, satisfactory to the Swingline Lender or the Issuing Bank 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 Parent Borrower and Company, the Issuing Bank and the Swingline Lender each agrees, acting in good faith and a commercially reasonable manner, agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then (x) 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 CommitmentApplicable Percentage and (y) any cash collateral provided under this Section 2.25 shall be promptly released and returned to the Company.
Appears in 1 contract
Sources: Credit Agreement (Fuller H B Co)
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 Available Revolving Commitment of such Defaulting Lender pursuant to Section 2.10(a2.11(a);
(b) the Revolving Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether 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, waiver or other modification pursuant to Section 10.029.02); provided, provided that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an any amendment, waiver or other modification requiring the consent of each all Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender or each Lender affected therebyin accordance with the terms hereof;
(c) if any LC Exposure exists at the time such Revolving Lender becomes a Defaulting Lender then:
(i) all or any part of the LC Exposure of such Defaulting Lender shall be reallocated among the nonNon-Defaulting Lenders 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 Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated disregarding the Revolving Commitments of the Defaulting Lenders at such time) but only to the extent that the sum of all nonNon-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s LC Exposure does not exceed the total sum of all nonNon-Defaulting Lenders’ Revolving Commitments; provided that no reallocation under this clause (i) 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) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Parent Borrower shall within one Business Day following notice by the Administrative Agent cash collateralize for the benefit of the Issuing Bank only such Borrower’s obligations corresponding to Banks the portion of such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) that has not been reallocated in accordance with the procedures set forth in Section 2.04(k2.04(i) for so long as such LC Exposure is outstanding;
(iii) if the Parent Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Parent Borrower shall not be required to pay any participation fees to such Defaulting Lender pursuant to Section 2.04(f2.11(b) with respect to such portion of such Defaulting Lender’s LC Exposure during the period for so long as such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of the non-such Defaulting Lenders Lender is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.10(a2.11(a) and 2.04(f2.11(b) shall be adjusted in accordance with to give effect to such non-Defaulting Lenders’ Commitmentreallocation; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all participation fees payable under Section 2.04(f2.11(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender, no Issuing Bank shall be required to issue, amend amend, renew or increase extend any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% fully covered by the Revolving Commitments of the nonNon-Defaulting Lenders and/or cash collateral will be provided by the applicable Borrower in accordance with Section 2.19(c), and participating interests in any newly issued such issued, amended, reviewed or increased extended Letter of Credit shall will be allocated among nonthe Non-Defaulting Lenders in a manner consistent with Section 2.19(c)(i) (and such Defaulting Lender shall not participate therein). If In the event that (ix) a Bankruptcy Event with respect to a Revolving Lender Parent of any Lender shall occur have occurred following the date hereof and for so long as such event Bankruptcy Event shall continue or (iiy) the 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 no Issuing Bank shall not be required to issue, amend amend, renew or increase extend any Letter of Credit, unless the such Issuing Bank, as the case may be, shall have entered into arrangements with the Parent Borrower or such Lender, Revolving Lender satisfactory to such Issuing Bank, as the Issuing Bank case may be, to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the Parent Borrower Borrower, and the each Issuing Bank each agrees, acting in good faith and a commercially reasonable manner, agree that a Defaulting Lender has adequately remedied all matters that caused such Revolving Lender to be a Defaulting Lender, then the LC 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 as the Administrative Agent shall determine may be necessary in order for such Revolving Lender to hold such Revolving Loans in accordance with its CommitmentApplicable Percentage; 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 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 1 contract
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 pursuant to Section 2.11(a) on the unfunded portion unused amount of the Available Revolving Commitment of such Defaulting Lender pursuant to Section 2.10(a)Lender;
(b) the Revolving Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether 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, waiver or other modification pursuant to Section 10.029.02); provided, provided that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an any amendment, waiver or other modification requiring the consent of each all Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender or each Lender affected therebyin accordance with the terms hereof;
(c) if any LC Exposure exists at the time such Revolving Lender becomes a Defaulting Lender then:
(i) all or any part of the LC Exposure of such Defaulting Lender shall be reallocated among the nonNon-Defaulting Lenders in accordance with their respective Commitments Applicable Percentages but only to the extent that (x) the sum of all nonNon-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s LC Exposure does not exceed the total sum of all nonNon-Defaulting Lenders’ CommitmentsRevolving Commitments and, for the avoidance of doubt, (y) such reallocation does not, as to any Non-Defaulting Lender, cause such Non-Defaulting Lender’s Revolving Exposure to exceed its Revolving Commitment; provided, that subject to Section 9.18, 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;
(ii) if (x) an Event of Default has occurred and is continuing or (y) the reallocation described in clause (i) above cannot, or can only partially, be effected, the Parent Borrower Borrowers shall within one Business Day following notice by the Administrative Agent cash collateralize for the benefit of the Issuing Bank only such Borrower’s obligations corresponding to Banks the portion of such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) that has not been reallocated in accordance with the procedures set forth in Section 2.04(k2.06(j) for so long as such LC Exposure is outstanding;
(iii) if the Parent Borrower Borrowers cash collateralizes collateralize any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Parent Borrower Borrowers shall not be required to pay any participation fees to such Defaulting Lender pursuant to Section 2.04(f2.11(b) with respect to such portion of such Defaulting Lender’s LC Exposure during the period for so long as such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of the non-such Defaulting Lenders Lender is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.10(a2.11(a) and 2.04(f2.11(b) shall be adjusted in accordance with to give effect to such non-Defaulting Lenders’ Commitmentreallocation; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment utilized by such LC Exposure) and participation fees payable under Section 2.04(f2.11(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender, no Issuing Bank shall be required to issue, amend amend, renew or increase extend any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% fully covered by the Revolving Commitments of the nonNon-Defaulting Lenders and/or cash collateral will be provided by the applicable Borrower Borrowers in accordance with Section 2.19(c), and, so long as no Event of Default has occurred and is continuing, participating interests in any newly issued such issued, amended, reviewed or increased extended Letter of Credit shall will be allocated among nonthe Non-Defaulting Lenders in a manner consistent with Section 2.19(c)(i) (and such Defaulting Lender shall not participate therein). If In the event that (ia) a Bankruptcy Event with respect to a Revolving Lender Parent of any Lender shall occur have occurred following the date hereof and for so long as such event Bankruptcy Event shall continue or (iib) the 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 no Issuing Bank shall not be required to issue, amend amend, renew or increase extend any Letter of Credit, unless the such Issuing Bank, as the case may be, Bank shall have entered into arrangements with the Parent Borrower Borrowers or such Lender, Revolving Lender satisfactory to the such Issuing Bank to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the Parent Borrower Borrowers and the each Issuing Bank each agrees, acting in good faith and a commercially reasonable manner, 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 Revolving 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 Revolving Lenders as the Administrative Agent shall determine may be necessary in order for such Revolving Lender to hold such Loans in accordance with its CommitmentApplicable Percentage.
Appears in 1 contract
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 Available Commitment of such Defaulting Lender pursuant to Section 2.10(a2.9(a);
(b) the Commitment and Revolving Credit Facility Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 10.029.8); provided, provided that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendmentany waiver, waiver amendment or other modification requiring the consent of each Lender all Lenders or each directly affected Lender affected therebypursuant to Section 9.8(b)(i), (ii) and (iii), shall in each case require the consent of such Defaulting Lender;
(c) if any ABR Swingline Exposure or LC Exposure exists at the time such a Lender becomes a Defaulting Lender then:
(i) all or any part of the contingent obligations of the Lenders in respect of such ABR Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Commitments Revolving Credit Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Outstanding Revolving Extensions of Credit Exposures plus such Defaulting Lender’s LC Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments;Commitments and (y) the conditions set forth in Section 4.3(b), (c) and (d) are satisfied at such time; and
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Parent Borrower Borrowers shall within one Business Day following notice by the Administrative Agent (x) first, prepay the ABR Swingline Loans and (y) second, cash collateralize for the benefit of the Issuing Bank only such Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with a manner satisfactory to the procedures set forth in Section 2.04(k) Administrative Agent for so long as such LC Exposure is outstanding;.
(iii) if the Parent Borrower Borrowers cash collateralizes collateralize any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) abovethis Section 2.24(c), the Parent Borrower Borrowers shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.04(f2.9(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) abovethis Section 2.24(c), then the fees payable to the Lenders pursuant to Sections 2.10(a) and 2.04(fSection 2.9(b) shall be adjusted in accordance with such non-Defaulting Lenders’ CommitmentRevolving Credit Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized nor reallocated pursuant to clause (i) or (ii) abovethis Section 2.24(c), then, without prejudice to any rights or remedies of any Issuing Bank Lender or any other Lender hereunder, all fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) under Section 2.04(f2.9(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank Lenders in accordance with their outstanding Letters of Credit until and to the extent that such LC Exposure is reallocated cash collateralized and/or cash collateralized; andreallocated;
(d) so long as such any Lender is a Defaulting Lender, no Lender none of the Swingline Lenders shall be required to fund any ABR Swingline Loans and none of the Issuing Bank Lenders 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 applicable Borrower Borrowers in accordance with Section 2.19(c2.24(c), and participating interests in any such newly issued or increased Letter of Credit or newly made Swingline Loans shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.19(c)(i2.24(c)(i) (and such Defaulting Lender Lenders shall not participate therein). If ; 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 hereto (but excluding Section 2.21) may, in lieu of being distributed to such Defaulting Lender, be applied by the Administrative Agent (i) a Bankruptcy Event with respect first, to a Parent the payment of any amounts owing by such Defaulting Lender shall occur following to the date hereof Issuing Lenders, the Swingline Lenders and for so long as such event shall continue or the Administrative Agent hereunder, (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 creditsecond, the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless the Issuing Bank, as the case may be, shall have entered into arrangements with the Parent Borrower or such Lender, satisfactory to the Issuing Bank to defease funding of any risk to it Loan in respect of which such Defaulting Lender hereunderhas failed to fund its portion thereof as required by this Agreement and (iii) third, to such Defaulting Lender; provided that if such payment is (x) a prepayment of the principal amount of any Loans and (y) made at a time when the conditions set forth in Section 4.3 are satisfied, such payment 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. In the event that the Administrative Agent, the Parent Borrower Agent and the Issuing Bank CBS each agrees, acting in good faith and a commercially reasonable manner, 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 Revolving Credit Loans of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Lender to hold such the Revolving Credit Loans in accordance with its CommitmentCommitment Percentage. Except as expressly modified by this Section 2.24, the performance by any Borrower under any of the Loan Documents shall not be excused or otherwise modified as a result of this Section 2.24.
Appears in 1 contract
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 Commitment of such Defaulting Lender pursuant to Section 2.10(a2.12(a);
(b) the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.029.02); provided, that that, except as otherwise provided in Section 9.02, this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of each such Lender or each Lender directly affected thereby;
(c) if any Swingline Exposure or LC Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Commitments Applicable Percentages but only to the extent that (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the total of all non-Defaulting Lenders’ CommitmentsCommitments and (y) the sum of each non-Defaulting Lender’s Revolving Credit Exposure plus the amount of such Defaulting Lender’s Swingline Exposure and LC Exposure reallocated to such non-Defaulting Lender does not exceed such non-Defaulting Lender’s Commitment;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Parent Borrower Borrowers shall within one three (3) Business Day 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 such Borrower’s Banks only, the Borrowers’ obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(k2.06(j) for so long as such LC Exposure is outstanding;
(iii) if the Parent Borrower Borrowers cash collateralizes collateralize any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Parent Borrower Borrowers shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.04(f2.12(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.10(aSection 2.12(a) and 2.04(fSection 2.12(b) shall be adjusted in accordance with such non-Defaulting Lenders’ CommitmentApplicable Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any the relevant Issuing Bank or any other Lender hereunder, all letter of credit fees payable under Section 2.04(f2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable such Issuing Bank until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Lender is a Defaulting Lender, no the Swingline Lender shall not be required to fund any Swingline Loan and the relevant 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 applicable Borrower Borrowers in accordance with Section 2.19(c2.24(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 2.19(c)(i2.24(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 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 funding 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 not be required to issue, amend or increase any Letter of Credit, unless the Swingline Lender or such Issuing Bank, as the case may be, shall have entered into arrangements with the Parent Borrower Company or such Lender, reasonably satisfactory to the Swingline Lender or such Issuing Bank 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 Parent Borrower Company, the Swingline Lender and the each Issuing Bank each agrees, acting in good faith and a commercially reasonable manner, 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 CommitmentApplicable Percentage.
Appears in 1 contract
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 LenderLender :
(a) fees shall cease to accrue on the unfunded portion of the Available Commitment of such Defaulting Lender pursuant to Section 2.10(a2.11(a);
(b) the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Requisite Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.0211.05); provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of each Lender or each Lender affected thereby;
(c) if any LC Swing Line Exposure or Letter of Credit Usage exists at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of the LC Swing Line Exposure and Letter of Credit Usage of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Commitments Applicable Percentages but only to the extent that (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s LC Swing Line Exposure and Letter of Credit Usage does not exceed the total of all non-Defaulting Lenders’ Commitments, (y) the sum of any non-Defaulting Lender’s Revolving Exposure plus its Pro Rata Share of such Defaulting Lender’s Swing Line Exposure and Letter of Credit Usage does not exceed such non-Defaulting Lender’s Revolving Commitment and (z) the conditions set forth in Section 3.02 are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Parent Borrower shall within one Business Day following notice by the Administrative Agent (x) first, prepay such Swing Line Exposure and (y) second, cash collateralize for the benefit of the Issuing Bank only such Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure Letter of Credit Usage (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(k2.04(i) for so long as such LC Exposure Letter of Credit Usage is outstanding;
(iii) if the Parent Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure Letter of Credit Usage pursuant to clause (ii) above, the Parent Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.04(f2.11(a)(ii) with respect to such Defaulting Lender’s LC Exposure Letter of Credit Usage during the period such Defaulting Lender’s LC Exposure Letter of Credit Usage is cash collateralized;
(iv) if the LC Exposure Letter of Credit Usage of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.10(aSection 2.11(a)(i) and 2.04(fSection 2.11(a)(ii) shall be adjusted in accordance with such non-Defaulting Lenders’ CommitmentApplicable Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure Letter of Credit Usage is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any the Issuing Bank or any other Lender hereunder, all letter of credit fees payable under Section 2.04(f2.11(a)(ii) with respect to such Defaulting Lender’s LC Exposure Letter of Credit Usage shall be payable to the applicable Issuing Bank until and to the extent that such LC Exposure Letter of Credit Usage is reallocated and/or cash collateralized; and
(d) so long as such Lender is a Defaulting Lender, no the Swing Line Lender shall not be required to fund any Swing Line 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 Letter of Credit Usage will be 100% covered by the Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the applicable Borrower in accordance with Section 2.19(c2.21(c), and participating interests in any newly made Swing Line Loan or any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.19(c)(i2.21(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 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 Swing Line Lender shall not be required to fund any Swing Line Loan and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless the Swing Line Lender or the Issuing Bank, as the case may be, shall have entered into arrangements with the Parent Borrower or such Lender, reasonably satisfactory to the Swing Line Lender or the Issuing Bank 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, Borrower, the Parent Borrower Swing Line Lender and the Issuing Bank each agrees, acting in good faith and a commercially reasonable manner, agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the LC Swing Line Exposure and Letter of Credit Usage 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 Line Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its CommitmentApplicable Percentage.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Cypress Semiconductor Corp /De/)
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 Facility Commitment of such Defaulting Lender pursuant to Section 2.10(a2.12(a);
(b) the Revolving Facility Commitment and Revolving Facility Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.0210.08); provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of each such Lender or each Lender affected thereby;
(c) if any LC Swingline Exposure or Revolving L/C Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of the LC Swingline Exposure and Revolving L/C Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Commitments Pro Rata Shares of the Revolving Facility but only to the extent the sum of all non-Defaulting Lenders’ Revolving Facility Credit Exposures plus such Defaulting Lender’s LC Swingline Exposure and Revolving L/C Exposure does not exceed the total of all such non-Defaulting Lenders’ Revolving Facility Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Parent Borrower shall within one Business Day following notice by the Administrative Agent shall, without prejudice to any right or remedy available to it hereunder or under law, (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of the Issuing Bank only such the Borrower’s obligations corresponding to such Defaulting Lender’s LC Revolving L/C Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(k2.05(j) for so long as such LC Revolving L/C Exposure is outstanding;
(iii) if the Parent Borrower cash collateralizes any portion of such Defaulting Lender’s LC Revolving L/C Exposure pursuant to clause (ii) above, the Parent Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.04(f2.12(b) with respect to such Defaulting Lender’s LC Revolving L/C Exposure during the period such Defaulting Lender’s LC Revolving L/C Exposure is cash collateralized;
(iv) if the LC Revolving L/C Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.10(aSection 2.12(a) and 2.04(fSection 2.12(b) shall be adjusted in accordance with such non-Defaulting Lenders’ CommitmentPro Rata Shares of the Revolving Facility Commitments; and
(v) if all or any portion of such Defaulting Lender’s LC Revolving L/C Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any the Issuing Bank or any other Lender hereunder, all fees payable under Section 2.04(f2.12(b) with respect to such Defaulting Lender’s LC Revolving L/C Exposure shall be payable to the applicable Issuing Bank until and to the extent that such LC Revolving L/C Exposure is reallocated and/or cash collateralized; and
(d) so long as such Lender is a Defaulting Lender, no 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 Revolving Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Revolving L/C Exposure will be 100% covered by the Revolving Facility Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the applicable Borrower in accordance with Section 2.19(c2.23(c), and participating interests in any newly made Swingline Loan or any newly issued or increased Revolving Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.19(c)(i2.23(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to a Lender Parent of any Lender shall occur following the date Closing dDate 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 Revolving Letter of Credit, unless the Swingline Lender or the Issuing Bank, as the case may be, shall have entered into arrangements with the Parent Borrower or such Lender, satisfactory to the Swingline Lender or the Issuing Bank 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 Parent Borrower Borrower, the Swingline Lender and the Issuing Bank each agrees, acting in good faith and a commercially reasonable manner, agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the LC Swingline Exposure and Revolving L/C Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Revolving Facility Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its CommitmentPro Rata Share of the Revolving Facility Commitments; 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 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 1 contract
Sources: Amendment to Credit Agreement (Anywhere Real Estate Group 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 Available Commitment Percentage of such Defaulting Lender in the unused portion of each Borrower’s Borrower Sublimit pursuant to Section 2.10(a2.05(a);
(b) the Commitment and Revolving Credit Exposure Outstanding Credits of such Defaulting Lender shall not be included in determining whether (i) the Required Majority Lenders have taken or may take any action hereunder under this Agreement or (including ii) all Lenders affected thereby have taken or may take any consent to any amendmentaction under this Agreement, waiver or other modification pursuant to Section 10.02); provided, that this clause (b) shall not apply except to the vote extent Section 8.01 requires the consent of a all Lenders affected thereby (and does not otherwise exclude the Defaulting Lender in the case of Lenders from such required consent) to an amendment, waiver or other modification requiring the consent of each Lender or each Lender affected therebymodification;
(c) if any LC Exposure exists Swing Line Advance, Letter of Credit or Reimbursement Obligation is outstanding at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of the LC Exposure obligation of such Defaulting Lender to participate in such Swing Line Advance, Letter of Credit or Reimbursement Obligation shall be reallocated among the non-Defaulting Lenders in accordance with their respective Commitments Percentages but only to the extent that (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s LC Exposure Outstanding Credits does not exceed the total of all non-Defaulting Lenders’ CommitmentsCommitments and (y) the conditions set forth in Section 3.02 are satisfied at such time; provided, that, subject to Section 8.16, no such 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;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Parent each Borrower shall within one Business Day following notice by the Administrative Agent (x) first, prepay its Swing Line Advances, if any, and (y) second, cash collateralize for the benefit of the Issuing Bank applicable Fronting Banks only such Borrower’s obligations obligations, if any, corresponding to such Defaulting Lender’s LC Exposure obligation to participate in Letters of Credit (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with a manner reasonably satisfactory to the procedures set forth in Section 2.04(k) Administrative Agent and such Fronting Banks for so long as such LC Exposure is L/C Obligations are outstanding;
(iii) if and to the Parent extent that any Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure obligation to participate in Letters of Credit pursuant to clause (ii) above, the Parent such Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.04(f2.05(c) with respect to such Defaulting Lender’s LC Exposure Percentage of the Stated Amount of all Letters of Credit during the period such Defaulting Lender’s LC Exposure obligation is cash collateralized;
(iv) if the LC Exposure obligation of the non-Defaulting Lenders to participate in Letters of Credit is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.10(a) and 2.04(fSection 2.05(c) shall be adjusted in accordance with such non-Defaulting Lenders’ CommitmentPercentages; and
(v) if all or any portion of such the obligation of the non-Defaulting Lender’s LC Exposure Lenders to participate in Letters of Credit is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Fronting Bank or any other Lender hereunder, all fees payable under Section 2.04(f2.05(c) with respect to such Defaulting Lender’s LC Exposure Percentage of the Stated Amount of all Letters of Credit shall be payable to the applicable Issuing Bank Fronting Banks until and to the extent that such LC Exposure obligation is reallocated and/or cash collateralized; and;
(d) so long as such Lender is a Defaulting Lender, no Issuing Swing Line Lender shall be required to fund any Swing Line Advance, and no Fronting Bank shall be required to issue, amend or increase make any Extension of Credit in connection with a Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure obligations to participate in such Letter of Credit will be 100% covered by the Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the applicable Borrower in accordance with Section 2.19(c)subsection (c) above, and participating interests in any newly issued made Swing Line Advance or increased any new Extension of Credit relating to a Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.19(c)(isubsection (c)(i) above (and such Defaulting Lender 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 (whether voluntary or mandatory, at maturity, pursuant to Article VI or otherwise) shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting 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 Fronting Bank or Swing Line Lender hereunder; third, to cash collateralize the Fronting Banks’ Fronting Exposure with respect to such Defaulting Lender in accordance with subsection (c) above; fourth, as the Borrower may request (so long as no Unmatured 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 determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and the Borrowers, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Advances under this Agreement and (y) cash collateralize the Fronting Banks’ future Fronting Exposure with respect to such Defaulting Lender with respect to future Letters of Credit issued under this Agreement, in accordance with subsection (c) above; sixth, to the payment of any amounts owing to the Lenders, the Fronting Banks or Swing Line Lenders as a result of any judgment of a court of competent jurisdiction obtained by any Lender, any Fronting Bank or any Swing Line Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Unmatured Default or Event of Default exists, to the payment of any amounts owing to any Borrower as a result of any judgment of a court of competent jurisdiction obtained by such Borrower against such Defaulting 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 Advances or Reimbursement Obligations in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Advances were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 3.02 were satisfied or waived, such payment shall be applied solely to pay the Advances of, and Reimbursement Obligations owed to, all non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Advances of, or Reimbursement Obligations owed to, such Defaulting Lender until such time as all Advances and funded and unfunded participations in L/C Obligations and Swing Line Advances are held by the Lenders pro rata in accordance with their respective Percentages without giving effect to any reallocation pursuant to subsection (c) above. 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 subsection (e) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto. 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 continue, then no Swing Line Lender shall be required to fund any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend creditSwing Line Advance, the Issuing and no Fronting Bank shall not be required to issue, amend or increase any Letter of Credit, unless the Issuing such Swing Line Lender or Fronting Bank, as the case may be, shall have entered into arrangements with the Parent applicable Borrower or such Lender, Lender reasonably satisfactory to such Swing Line Lender or Fronting Bank, as the Issuing Bank case may be, to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the Parent Borrower applicable Borrower, the Swing Line Lenders and the Issuing Bank each agrees, acting in good faith and a commercially reasonable manner, Fronting Banks all agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the LC Exposure obligation of such Lender to participate in Swing Line Advances made to such Borrower and Letters of Credit for the Lenders account of such Borrower 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 Advances of the other Lenders (other than Swing Line Advances) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans Advances in accordance with its CommitmentPercentage. If the Borrowers and the Administrative Agent agree in writing that a Lender is no longer a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein, such Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to payments made by or on behalf of the Borrowers while that Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly agreed in writing 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 1 contract
Sources: Credit Agreement
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 Available Revolving Commitment of such Defaulting Lender pursuant to Section 2.10(a2.12(a);
(b) the Revolving Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders, Required Revolving Lenders or Required Financial Covenant Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.02); provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of each such Revolving Lender or each Lender affected thereby;
(c) if any LC Exposure exists at the time such Revolving Lender becomes a Defaulting Lender then:
(i) all or any part of the LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Commitments Applicable Percentages but only to the extent the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus Exposure (after giving effect to such Defaulting Lender’s LC Exposure reallocation) does not exceed the total of all non-Defaulting Lenders’ Revolving Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Parent Borrower shall within one Business Day following notice by the Administrative Agent cash collateralize Agent, Cash Collateralize for the benefit of the Issuing Bank Lenders only such the Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(k) for so long as such LC Exposure is outstanding;
(iii) if the Parent Borrower cash collateralizes Cash Collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Parent Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.04(f2.12(b)(i) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralizedCash Collateralized;
(iv) if the LC Exposure of such Defaulting Lender is reallocated to the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Revolving Lenders pursuant to Sections 2.10(aSection 2.12(a) and 2.04(fSection 2.12(b)(i) shall be adjusted in accordance with such non-Defaulting Lenders’ CommitmentApplicable Percentages after giving effect to the reallocation of such Defaulting Lender’s LC Exposure pursuant to clause (i) above; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized Cash Collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank Lender or any other Revolving Lender hereunder, all fees payable under Section 2.04(f2.12(b)(i) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank Lenders until and to the extent that such LC Exposure is reallocated and/or cash collateralizedCash Collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender, no Issuing Bank 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 applicable Borrower in accordance with Section 2.19(c2.20(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 2.19(c)(i2.20(c)(i) (and such Defaulting Lender shall not participate therein). If ;
(i) a Bankruptcy Event or a Bail-In Action with respect to a Lender Parent of any Revolving Lender shall occur following the date hereof First Amendment Effective Date and for so long as such event shall continue or (ii) the any Issuing Bank 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 such Issuing Bank Lender shall not be required to issue, amend or increase any Letter of Credit, unless the such Issuing Bank, as the case may be, Lender shall have entered into arrangements with the Parent Borrower or such Revolving Lender, satisfactory to the such Issuing Bank Lender to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the Parent Borrower and the Issuing Bank Lenders each agrees, acting in good faith and a commercially reasonable manner, 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 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 as the Administrative Agent shall determine may be necessary in order for such Revolving Lender to hold such Revolving Loans in accordance with its CommitmentApplicable Percentage.
Appears in 1 contract
Sources: Credit Agreement (Griffon 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 Available Commitment of such Defaulting Lender pursuant to Section 2.10(a2.12(a);
(b) the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.028.02); provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, consent, waiver or other modification requiring the consent of each Lender “such Lender” or each Lender directly affected thereby;thereby pursuant to clauses (i), (ii) or (iii) in the first proviso in Section 8.02(b).
(c) if any Swingline Exposure or LC Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Commitments Applicable Percentages 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;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Parent Borrower shall within one three (3) Business Day Days following notice by the Administrative Agent (x) first, the applicable Borrower shall prepay such Swingline Exposure and (y) second, the Company shall cash collateralize for the benefit of the Issuing Bank only such Borrowerthe Company’s obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(k2.06(j) for so long as such LC Exposure is outstandingoutstanding ;
(iii) if the Parent Borrower Company cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Parent Borrower Company shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.04(f2.12(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;; 262657
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.10(a) and 2.04(fSection 2.12(b) shall be adjusted in accordance with such non-Defaulting Lenders’ CommitmentApplicable Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any the Issuing Bank or any other Lender hereunder, all facility fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.04(f2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Lender is a Defaulting Lender, no 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 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 applicable Borrower in accordance with Section 2.19(c2.24(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 Lenders in a manner consistent with Section 2.19(c)(i2.24(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 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 Parent Borrower Borrowers or such Lender, satisfactory to the Swingline Lender or the Issuing Bank 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 Parent Borrower Company, the Swingline Lender and the Issuing Bank each agrees, acting in good faith and a commercially reasonable manner, 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 CommitmentApplicable Percentage.
Appears in 1 contract
Sources: Credit Agreement (Masco Corp /De/)
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 Commitment of such Defaulting Lender pursuant to Section 2.10(a2.12(a);
(b) the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or the Required Revolving Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.029.02); provided, that that, except as otherwise provided in Section 9.02, this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of each such Lender or each Lender directly affected thereby;
(c) if any Swingline Exposure or LC Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Commitments Applicable Percentages but only to the extent the sum of all non-non- Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the total of all non-Defaulting Lenders’ Revolving Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Parent Borrower Company shall within one three (3) Business Day Days following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of the each Issuing Bank only such Borrower’s only, the Borrowers’ obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(k2.06(j) for so long as such LC Exposure is outstanding;
(iii) if the Parent Borrower Company cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Parent Borrower Borrowers shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.04(f2.12(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.10(aSection 2.12(a) and 2.04(fSection 2.12(b) shall be adjusted in accordance with such non-Defaulting Lenders’ CommitmentApplicable Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any the relevant Issuing Bank or any other Lender hereunder, all letter of credit fees payable under Section 2.04(f2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable such Issuing Bank until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Lender is a Defaulting Lender, no the Swingline Lender shall not be required to fund any Swingline Loan and the relevant 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 applicable Borrower Company in accordance with Section 2.19(c2.24(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-non- Defaulting Lenders in a manner consistent with Section 2.19(c)(i2.24(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 date hereof Original Effective Date 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 funding 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 not 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 Parent Borrower Company or such Lender, reasonably satisfactory to the Swingline Lender or such Issuing Bank 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 Parent Borrower Company, the Swingline Lender and the each Issuing Bank each agrees, acting in good faith and a commercially reasonable manner, 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 CommitmentApplicable Percentage.
Appears in 1 contract
Sources: Credit Agreement (Coach 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 2.10(a2.12(a);
(b) the Revolving Commitment and Revolving the Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, all affected Lenders, the Supermajority Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 10.029.02); provided, provided that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendmentany waiver, waiver amendment or other modification requiring the consent of each Lender all Lenders or each affected Lender affected therebydescribed in clause (A), (B) or (C) of the first proviso to Section 9.02(b) shall require the consent of such Defaulting Lender;
(c) if any Swingline Exposure or LC Exposure exists under any Facility under which such Lender has a Revolving Commitment exist at the time such a Lender becomes a Defaulting Lender then:
(i) all or any part of the such Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders under such Facility in accordance with their respective Commitments Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures Exposure under such Facility plus such Defaulting Lender’s Swingline Exposure under such Facility and LC Exposure under such Facility does not exceed the total of all non-Defaulting Lenders’ Commitments;Revolving Commitment under such Facility and (y) the conditions set forth in Section 4.02 are satisfied at such time; and
(ii) if the reallocation described in clause paragraph (i) above cannot, or can only partially, be effected, the Parent Borrower Borrowers shall within one Business Day following notice by the Administrative Agent cash collateralize for the benefit of the Issuing Bank only such Borrower’s obligations corresponding to (x), first, prepay such Defaulting Lender’s LC Swingline Exposure under the applicable Facility (after giving effect to any partial reallocation pursuant to clause paragraph (i) above) and (y), second, cash collateralize such Defaulting Lender’s LC Exposure under such Facility (after giving effect to any partial reallocation pursuant to paragraph (i) above) in accordance with the procedures set forth in Section 2.04(kSections 2.06(k) and for so long as any such LC Exposure under such Facility is outstanding;
(iii) if the Parent Borrower Borrowers cash collateralizes collateralize any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) abovethis Section 2.23(c), the Parent Borrower Borrowers shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.04(f) 2.12(b), as the case may be, with respect to such Defaulting Lender’s LC Exposure that has been cash collateralized, as the case may be, during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is are reallocated pursuant to clause (i) abovethis Section 2.23(c), then the fees payable to the Lenders pursuant to Sections 2.10(a2.12(a) and 2.04(f) (b), as the case may be, shall be adjusted in accordance with such non-Defaulting Lenders’ CommitmentApplicable Percentages; andor
(v) if all or any portion of such Defaulting Lender’s LC Exposure under any Facility is neither not cash collateralized, prepaid or reallocated nor cash collateralized pursuant to clause (i) or (ii) abovethis Section 2.23(c), then, without prejudice to any rights or remedies of any the applicable Issuing Bank or any other Lender hereunder, all commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Revolving Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.04(f2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank until and to the extent that such Defaulting Lender’s LC Exposure is reallocated and/or cash collateralized; and;
(d) so long as such any Lender is a Defaulting LenderLender under any Facility, no Swingline Lender shall be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, extend, create, incur, amend or increase any Letter of Credit, Credit under such Facility unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Commitments Revolving Commitment of the non-Defaulting Lenders and/or cash collateral will be provided by the applicable Borrower Borrowers in accordance with Section 2.19(c2.23(c), and participating interests in any such newly issued issued, extended or increased created Letter of Credit or newly made Swingline Loan shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.19(c)(i2.23(c)(i) (and such Defaulting Lender Lenders shall not participate therein). If ; and
(ie) 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 2.18(d) but excluding Section 2.19(b)) shall, in lieu of being distributed to such Defaulting Lender, be retained by the Administrative Agent in a Bankruptcy Event with respect segregated account and, subject to a Parent any applicable requirements of law, be applied at such time or times as may be determined by the Administrative Agent: first, to the payment of any amounts owing by such Defaulting Lender shall occur following to any Applicable Administrative Agent hereunder, second, pro rata, to the date hereof and for so long as payment of any amounts owing by such event shall continue or (ii) Defaulting Lender to the applicable Issuing Bank has a good faith belief that any or Swingline Lender has defaulted in fulfilling its obligations under one hereunder, third, if so determined by the Administrative Agent or more other agreements in which such Lender commits to extend credit, the requested by an Issuing Bank shall not or Swingline Lender, to be required to issue, amend held in such account as cash collateral for future finding obligations of the Defaulting Lender of any participating interest in any Swingline Loan or increase any Letter of Credit, unless the Issuing Bankfourth, as the case may be, shall have entered into arrangements with the Parent Borrower or such Lender, satisfactory to the Issuing Bank to defease funding of any risk to it Loan in respect of which such Defaulting Lender hereunderhas failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, fifth, to the payment of any amounts owing to the Lenders, the Issuing Banks or the Swingline Lenders as a result of any judgment of a court of competent jurisdiction obtained by any Lender, any Issuing Bank or any Swingline Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, sixth, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, seventh, if so determined by the Administrative Agent and the Borrower Representative, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Loans under this Agreement, and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that (i) if such payment is (x) a prepayment of the principal amount of any Loans or reimbursement obligations in respect of LC Disbursements for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 4.02 are satisfied, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Lender and (ii) no payment made by any International Loan Party shall be applied to pay any U.S. Obligations pursuant to the provisions of this clause (e). In the event that the Administrative Agent, the Parent Borrower Borrowers, the Issuing Banks and the Issuing Bank Swingline Lenders each agrees, acting in good faith and a commercially reasonable manner, 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 under each applicable Facility shall be readjusted to reflect the inclusion of such Lender’s Revolving Commitment under such Facility and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) under such Facility as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its CommitmentApplicable Percentage. Nothing in this Section 2.23 shall limit the rights and remedies any party hereto shall have against any Defaulting Lender.
Appears in 1 contract
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 Available Commitment of such Defaulting Lender pursuant to Section 2.10(a2.12(a);
(b) the Revolving Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether 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, waiver or other modification pursuant to Section 10.029.02); provided, provided that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an any amendment, waiver or other modification requiring the consent of each all Lenders or all Lenders adversely affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender or each Lender affected therebyin accordance with the terms hereof;
(c) if any LC Exposure exists at the time such a Revolving Lender becomes a Defaulting Lender Lender, 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 Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(e) and 2.05(f)) of such Defaulting Lender shall be reallocated among the non-Defaulting Revolver Lenders in accordance with their respective Commitments Applicable Percentages but only to the extent that (x) the sum of all non-Defaulting Revolving Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s LC Exposure does not exceed the total sum of all non-Defaulting Revolving Lenders’ CommitmentsRevolving 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 Commitment; provided that, subject to Section 9.18, 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 ▇▇▇▇▇▇ 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;
(iiiii) if the reallocation described in clause (iii) above cannot, or can only partially, be effected, the Parent Borrower shall within one Business Day following notice by the Administrative Agent cash collateralize for the benefit of the Issuing Bank only such Borrower’s obligations corresponding to Banks the portion of such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) that has not been reallocated in accordance with the procedures set forth in Section 2.04(k2.05(i) for so long as such LC Exposure is outstanding;
(iiiiv) if the Parent Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure is cash collateralized pursuant to clause (iiiii) above, the Parent Borrower shall not be required to pay any participation fees to such Defaulting Lender pursuant to Section 2.04(f2.12(b) with respect to such portion of such Defaulting Lender’s LC Exposure during the period for so long as such Defaulting Lender’s LC Exposure is cash collateralized;
(ivv) if any portion of the LC Exposure of the non-such Defaulting Lenders Lender is reallocated pursuant to clause (iii) above, then the fees payable to the Lenders pursuant to Sections 2.10(a2.12(a) and 2.04(f2.12(b) shall be adjusted in accordance with to give effect to such non-Defaulting Lenders’ Commitmentreallocation;
(vi) [reserved]; and
(vvii) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (iii) or (iiiii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all participation fees payable under Section 2.04(f2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender, no Issuing Bank shall be required to issue, amend amend, renew or increase extend any Letter of Credit, Credit unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% fully covered by the Revolving Commitments of the non-Defaulting Revolving Lenders and/or cash collateral will be provided by the applicable Borrower in accordance with Section 2.19(c2.20(c), and participating interests in any newly issued such issued, amended, renewed or increased extended Letter of Credit shall will be allocated among the non-Defaulting Revolving Lenders in a manner consistent with Section 2.19(c)(i2.20(c)(ii) (and such Defaulting Lender shall not participate therein). If In the event that (i) a Bankruptcy Event with respect to a Revolving Lender Parent of any Lender shall occur following the date hereof Effective Date and for so long as such event Bankruptcy Event shall continue or (ii) the 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 such Issuing Bank shall not be required to issue, amend amend, renew or increase extend any Letter of Credit, unless the such Issuing Bank, as the case may be, Bank shall have entered into arrangements with the Parent The Borrower or such the applicable Revolving Lender, satisfactory to the such Issuing Bank to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the Parent Borrower and the each applicable Issuing Bank each agrees, acting in good faith and a commercially reasonable manner, agrees that a Defaulting Lender has adequately remedied all matters that caused such the applicable Revolving Lender to be a Defaulting Lender, then the LC 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 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 CommitmentApplicable Percentage; 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 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 1 contract
Sources: Credit Agreement (Solstice Advanced Materials 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 Commitment of such Defaulting Lender pursuant to Section 2.10(a2.12(a);
(b) the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.029.02); provided, that that, except as otherwise provided in Section 9.02, this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of each such Lender or each Lender directly affected thereby;
(c) if any Swingline Exposure or LC Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Commitments Applicable Percentages 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;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Parent Borrower shall within one (1) Business Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of the Issuing Bank Banks only such Borrower’s the Borrowers’ obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(k2.06(j) for so long as such LC Exposure is outstanding;
(iii) if the Parent Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Parent Borrower Borrowers shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.04(f2.12(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.10(aSection 2.12(a) and 2.04(fSection 2.12(b) shall be adjusted in accordance with such non-Defaulting Lenders’ CommitmentApplicable Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any the applicable Issuing Bank or any other Lender hereunder, all letter of credit fees payable under Section 2.04(f2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable such Issuing Bank until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless 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 applicable Borrower Parent in accordance with Section 2.19(c2.22(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 2.19(c)(i2.22(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to a Lender Parent of any Lender shall occur following the date hereof and for so long as such event shall continue or (ii) the Swingline Lender or 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 Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless the Swingline Lender or such Issuing Bank, as the case may be, shall have entered into arrangements with the Parent Borrower or such Lender, satisfactory to the Swingline Lender or such Issuing Bank 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 Parent Borrower Parent, the Swingline Lender and the Issuing Bank Banks each agrees, acting in good faith and a commercially reasonable manner, 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 CommitmentApplicable Percentage.
Appears in 1 contract
Sources: Credit Agreement (PTC 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 Commitment of such Defaulting Lender pursuant to Section 2.10(a2.11(a);
(b) the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.029.02); provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of each such Lender or each Lender affected therebythereby pursuant to Section 9.02(b);
(c) if any Swingline Exposure or LC Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) shall be reallocated among the non-Defaulting Lenders in accordance with their respective Commitments Applicable Percentages but only to the extent that (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the total of all non-Defaulting Lenders’ CommitmentsCommitments and (y) the conditions set forth in Section 4.02 are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Parent Borrower shall within one three Business Day 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 such the Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(k2.05(j) for so long as such LC Exposure is outstanding;
(iii) if the Parent Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Parent Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.04(f2.11(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.10(aSection 2.11(a) and 2.04(fSection 2.11(b) shall be adjusted in accordance with such non-Defaulting Lenders’ CommitmentApplicable Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any the Issuing Bank or any other Lender hereunder, all Unused fees that otherwise would have been payable to such Defaulting Lender and letter of credit fees payable under Section 2.04(f2.11(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Lender is a Defaulting Lender, no 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 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 applicable Borrower in accordance with Section 2.19(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 Lenders in a manner consistent with Section 2.19(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to a Lender Parent of any Lender shall occur following the date hereof and for so long as such event shall continue or (ii) continue, the Issuing Bank has a good faith belief that Swingline Lender shall not be required to fund any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, 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 Parent Borrower or such Lender, satisfactory to the Swingline Lender or the Issuing Bank 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 Parent Borrower Borrower, the Swingline Lender and the Issuing Bank each agrees, acting in good faith and a commercially reasonable manner, 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 CommitmentApplicable Percentage.
Appears in 1 contract
Sources: Credit Agreement (Masimo 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 Available Commitment of such Defaulting Lender pursuant to Section 2.10(a2.12(a);
(b) the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.029.02); provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of each such Lender or each Lender affected thereby;
(c) if any Swingline Exposure or LC Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Commitments Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the total of all non-Defaulting Lenders’ CommitmentsCommitments and (y) no Default has occurred and is then continuing;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Parent Borrower shall within one (1) Business Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of the Issuing Bank only such the Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(k2.06(j) for so long as such LC Exposure is outstanding;
(iii) if the Parent Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Parent Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.04(f2.12(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.10(aSection 2.12(a) and 2.04(fSection 2.12(b) shall be adjusted in accordance with such non-Defaulting Lenders’ CommitmentApplicable Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any the Issuing Bank or any other Lender hereunder, all letter of credit fees payable under Section 2.04(f2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Lender is a Defaulting Lender, no 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 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 applicable Borrower in accordance with Section 2.19(c2.22(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 2.19(c)(i2.22(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 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 Parent Borrower or such Lender, reasonably satisfactory to the Swingline Lender or the Issuing Bank 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 Parent Borrower Borrower, the Swingline Lender and the Issuing Bank each agrees, acting in good faith and a commercially reasonable manner, 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 CommitmentApplicable Percentage.
Appears in 1 contract
Sources: Credit Agreement (Viropharma 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 2.10(a2.12(a);
(b) the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.02)9.02) or under any other Loan Document; provided, that that, except as otherwise provided in Section 9.02, this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of each such Lender or each Lender directly affected thereby;
(c) if any Swingline Exposure or LC Exposure exists at the time such a Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Commitments Applicable Percentages but only to the extent that (x) the conditions set forth in Section 4.02 are satisfied at the time of such reallocation (and, unless the Borrower Representative shall have otherwise notified the Administrative Agent at such time, the Borrowers shall be deemed to have represented and warranted that such conditions are satisfied at such time) and (y) 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’ CommitmentsRevolving Commitments (no reallocation hereunder shall constitute a waiver or a release of any party hereunder arising from such Lender having become a Defaulting Lender);
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Parent Borrower Borrowers shall within one (1) Business Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize collateralize, for the benefit of the Issuing Bank only such Borrower’s Bank, the Borrowers’ obligations corresponding to such Defaulting Lender’s LC Exposure (in both cases, after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(k2.06(j) for so long as such LC Exposure is outstanding;
(iii) if the Parent Borrower Borrowers cash collateralizes collateralize any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Parent Borrower Borrowers shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.04(f2.12(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.10(a2.12(a) and 2.04(f2.12(b) shall be adjusted in accordance with such non-Defaulting Lenders’ CommitmentApplicable Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any the Issuing Bank or any other Lender hereunder, all letter of credit fees payable under Section 2.04(f2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Lender is a Defaulting Lender, no the Issuing Bank shall not be required to issue, amend amend, renew, extend or increase any Letter of Credit, unless it is satisfied that the related exposure and the such 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 applicable Borrower Borrowers in accordance with Section 2.19(c2.20(c), and participating interests in any such newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.19(c)(i2.20(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to a the 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, as the case may be, Bank shall have entered into arrangements with the Parent Borrower Borrowers or such Lender, satisfactory to the Issuing Bank to defease any risk to it in respect of such Lender hereunder. In the event that each of the Administrative Agent, the Parent Borrower and Borrowers, the Issuing Bank each agrees, acting in good faith and a commercially reasonable manner, the Swingline Lender 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 Commitment and on the date of such date readjustment 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 CommitmentApplicable Percentage. 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 having been a Defaulting Lender.
Appears in 1 contract
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 continue to accrue on the unfunded portion amount of the Available Revolving Commitment of such Defaulting Lender pursuant to Section 2.10(a2.12(a) only to the extent of the Revolving Credit Exposure of such Defaulting Lender (excluding any portion thereof constituting Swingline Exposure or LC Exposure of such Defaulting Lender that is subject to reallocation under clause (c)(i) below);; AMERICAS/▇▇▇▇▇▇▇▇▇▇.12022776969.5 64
(b) the Revolving Commitment and the Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether 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, waiver or other modification pursuant to Section 10.02); provided, provided that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an any amendment, waiver or other modification requiring the consent of each all Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 10.02, require the consent of such Defaulting Lender or each Lender affected therebyin accordance with the terms hereof;
(c) if any Swingline Exposure or LC Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) all or the Swingline Exposure (other than any part of the portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c)) and LC Exposure of such Defaulting Lender (other than any portion thereof attributable to unreimbursed 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)) shall be reallocated among the non-Defaulting Non‑Defaulting Lenders in accordance with their respective Commitments Applicable Percentages but only to the extent that (x) the sum of all nonNon-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’ Revolving Commitments and (y) each Non-Defaulting Lenders’ Revolving Credit Exposure does not exceed the total of all non-Defaulting Lenders’ Commitmentsits Revolving Commitment;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Parent Borrower Borrowers shall within one Business Day following notice by the Administrative Agent or an Issuing Bank (provided that such Issuing Bank shall immediately also notify the Administrative Agent) (A) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated as set forth in such clause and (B) second, cash collateralize for the benefit of the Issuing Bank only such Borrower’s obligations corresponding to Banks the portion of such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to that has not been reallocated as set forth in such clause (i) above) in accordance with the procedures set forth in Section 2.04(k2.05(i) for so long as such LC Exposure is outstanding;
(iii) if the Parent Borrower Borrowers cash collateralizes collateralize any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Parent Borrower Borrowers shall not be required to pay any participation fees to such Defaulting Lender pursuant to Section 2.04(f2.12(b) with respect to such portion of such Defaulting Lender’s LC Exposure during the period for so long as such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of the non-such Defaulting Lenders Lender is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.10(a) and 2.04(fSection 2.12(b) shall be adjusted in accordance with to give effect to such non-Defaulting Lenders’ Commitmentreallocation; andAMERICAS/▇▇▇▇▇▇▇▇▇▇.12022776969.5 65
(v) if all or any portion of such Defaulting Lender’s Swingline Exposure that is subject to reallocation pursuant to clause (i) above is neither reallocated nor reduced pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of the Swingline Lender or any other Lender hereunder, all facility fees that otherwise would have been payable to such Defaulting Lender with respect to such portion of its Swingline Exposure shall be payable to the 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 that is subject to reallocation pursuant to clause (i) above is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all facility fees that otherwise would have been payable to such Defaulting Lender with respect to such portion of its LC Exposure, and all participation fees payable under Section 2.04(f2.12(b) with respect to such Defaulting Lender’s portion of its LC Exposure Exposure, shall be payable to the applicable Issuing Bank Banks (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 issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Lender is a Defaulting Lender, no Swingline Lender shall be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend amend, renew or increase extend any Letter of Credit, unless in each case it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure or LC Exposure Exposure, as applicable, will be 100% fully covered by the Revolving Commitments of the non-Defaulting Non‑Defaulting Lenders and/or cash collateral will be provided by the applicable Borrower Borrowers in accordance with Section 2.19(c)clause (c) above, and participating interests in any newly issued such funded Swingline Loan or increased in any such issued, amended, renewed or extended Letter of Credit shall will be allocated among non-Defaulting the Non‑Defaulting Lenders in a manner consistent with Section 2.19(c)(iclause (c)(i) above (and such Defaulting Lender shall not participate therein). If .
(e) In the event that (i) a Bankruptcy Event with respect to a Lender Parent of any Lender shall occur have occurred following the date hereof and for so long as such event Bankruptcy 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 Issuing Bank Swingline Lender shall not be required to fund any Swingline Loan, and no Issuing Bank shall be required to issue, amend amend, renew or increase 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 Parent applicable Borrower or such Lender, Lender satisfactory to the Swingline Lender or such Issuing Bank Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. .
(f) In the event that the Administrative Agent, the Parent Borrower Company the Swingline Lender and the each Issuing Bank each agrees, acting in good faith and a commercially reasonable manner, 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 AMERICAS/▇▇▇▇▇▇▇▇▇▇.12022776969.5 66 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 CommitmentApplicable Percentage.
Appears in 1 contract
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 Commitment of such Defaulting Lender pursuant to Section 2.10(a2.11(a);
(b) the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.02); provided, provided that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of each Lender affected thereby if such amendment, waiver or each other modification would affect such Defaulting Lender differently than the other Lenders affected therebythereby in any material adverse manner;
(c) if any Swingline Exposure or LC Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) shall be reallocated among the non-Defaulting Lenders in accordance with their respective Commitments Applicable Percentages but only to the extent that (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the total of all non-Defaulting Lenders’ CommitmentsCommitments and (y) the conditions set forth in Section 4.02 are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Parent Borrower shall shall, without prejudice to any right or remedy available to it hereunder or under law, within one two (2) Business Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of the Issuing Bank only such the Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(k2.05(j) for so long as such LC Exposure is outstandingoutstanding ;
(iii) if the Parent Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Parent Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.04(f2.11(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.10(aSection 2.11(a) and 2.04(fSection 2.11(b) shall be adjusted in accordance with such non-Defaulting Lenders’ CommitmentApplicable Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any the Issuing Bank or any other Lender hereunder, all facility fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.04(f2.11(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Lender is a Defaulting Lender, no 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 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 applicable Borrower in accordance with Section 2.19(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 Lenders in a manner consistent with Section 2.19(c)(i) (and such Defaulting Lender shall not participate therein). If .
(i) a Bankruptcy Event or a Bail-In Action with respect to a Lender Parent of any Lender shall occur following the date hereof and for so long as such event shall continue or (ii) the 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 Parent Borrower or such Lender, satisfactory to the Swingline Lender or the Issuing Bank Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that each of the Administrative Agent, the Parent Borrower Borrower, the Swingline Lender and the Issuing Bank each agrees, acting in good faith and a commercially reasonable manner, 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 CommitmentApplicable Percentage.
Appears in 1 contract
Sources: Credit Agreement (Stewart Information Services 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 Available Revolving Credit Commitment of such Defaulting Lender pursuant to Section 2.10(asubsection 2.5(a);
(b) the Commitment and Revolving Credit Exposure Commitment Percentage of such Defaulting Lender shall not be included in determining whether the Required Majority Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.02subsection 11.1); provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of each such Lender or each Lender affected thereby;
(c) if any LC Swingline Exposure or L/C Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of the LC Swingline Exposure and L/C Exposure of such Defaulting Lender (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) shall be reallocated among the non-Defaulting Lenders in accordance with their respective Commitments Revolving Credit Commitment Percentages (excluding from determination thereof the Revolving Credit Commitment of such Defaulting Lender) but only to the extent the sum of all non-Defaulting Lenders’ Aggregate Revolving Extensions of Credit Exposures plus such Defaulting Lender’s LC Exposure L/C ExposureCredit Outstandings does not exceed the total of all non-Defaulting Lenders’ Revolving Credit Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Parent relevant Borrower shall within one two Business Day 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 Lenders, only such thesuch Borrower’s obligations corresponding to such Defaulting Lender’s LC L/C Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(k) subsection 4.8 for so long as such LC L/C Exposure is outstanding;
(iii) if the Parent relevant Borrower cash collateralizes any portion of such Defaulting Lender’s LC L/C Exposure pursuant to clause (ii) above, the Parent thesuch Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.04(fsubsection 4.3(a) with respect to such Defaulting Lender’s LC L/C Exposure during the period such Defaulting Lender’s LC L/C Exposure is cash collateralized;
(iv) if the LC L/C Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.10(asubsection 2.5(a) and 2.04(fsubsection 4.3(a) shall be adjusted in accordance with such non-Defaulting Lenders’ CommitmentRevolving Credit Commitment Percentages (excluding from determination thereof the Revolving Credit Commitment of such Defaulting Lender); and
(v) if all or any portion of such Defaulting Lender’s LC L/C Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any the Issuing Bank Lenders or any other Lender hereunder, all letter of credit fees (including fronting fees) payable under Section 2.04(fsubsection 4.3(a) with respect to such Defaulting Lender’s LC L/C Exposure shall be payable to the applicable Issuing Bank Lender until and to the extent that such LC L/C Exposure is reallocated and/or cash collateralized; and
(d) so long as such Lender is a Defaulting Lender, no Swingline Lender shall be required to fund any Swingline Loan and no Issuing Bank 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 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 applicable relevant Borrower in accordance with Section 2.19(csubsection 3.14(c), and participating interests in Swingline Exposure related to any newly made Swingline Loan or L/C Exposure related to any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.19(c)(isubsection 3.14(c)(i) (and such Defaulting Lender shall not participate therein). If .
(i) a Bankruptcy Event or a Bail-In Action with respect to a Lender Parent of any Lender shall occur following the date hereof and for so long as such event shall continue or (ii) the any Swingline Lender or any Issuing Bank 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 no Swingline Lender shall be required to fund any Swingline Loan and no Issuing Bank Lender shall not be required to issue, amend or increase any Letter of Credit, unless the Swingline Lenders or the Issuing BankLenders, as the case may be, shall have entered into arrangements with the Parent Borrower relevant Borrowers or such Lender, satisfactory to each Swingline Lender or each Issuing Lender, as the Issuing Bank case may be, to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the Parent Borrower Borrower, each Swingline Lender and the each Issuing Bank Lender each agrees, acting in good faith and a commercially reasonable manner, agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the LC Swingline Exposure and L/C Exposure of the 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 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 CommitmentRevolving Credit Commitment Percentage.
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Sources: Credit Agreement (Henry Schein Inc)