Fronting Banks. (a) From time to time MBIA shall have the right, with the consent of the Administrative Agent and each affected Fronting Bank, to designate one or more Banks as Fronting Banks with respect to one or more other Banks under this Agreement. The designation of a Bank as a Fronting Bank shall become effective when (i) MBIA, the Administrative Agent and such Bank have entered into a Fronting Bank Supplement (or on such later date as may be set forth in such Fronting Bank Supplement), which shall set forth the Fronting Bank Commitment of such Bank with respect to each other Bank for which it is acting as Fronting Bank, and (ii) MBIA shall have duly executed and delivered to such Fronting Bank a Fronting Bank Note in the aggregate amount of its Fronting Bank Commitments, dated the date of such Fronting Bank Supplement (or of any applicable modification thereto), payable to the order of such Fronting Bank for the account of its applicable Lending Office and substantially in the form of Exhibit H hereto. Each Fronting Bank's Fronting Bank Note shall evidence Fronting Bank Loans made by such Fronting Bank pursuant to this Section 2.11 and otherwise shall constitute a Note for all purposes under this Agreement and the Loan Documents. A Fronting Bank Supplement may be amended or otherwise modified from time to time or terminated with the written consent of MBIA, the Administrative Agent and the Fronting Bank which is a party thereto. (b) The Fronting Bank Commitment of each Fronting Bank with respect to another Bank shall be automatically reduced by an amount equal to its applicable Fronting Bank Percentage of the amount of any reduction in such other Bank's Commitment (including without limitation a reduction resulting from the termination of such Bank's Tranche B Commitment, if any). In addition, the Fronting Bank Commitment of each Fronting Bank with respect to another Bank shall be automatically reduced by an amount equal to its applicable Fronting Bank Percentage of the amount of the Commitment of such other Bank which is sold, assigned or otherwise transferred by such other Bank to another Person; provided that a participation granted by such other Bank in accordance with Section 10.8(c) shall not constitute a sale, assignment or transfer for purposes of this paragraph. The Fronting Bank Commitment of each Fronting Bank with respect to another Bank shall be automatically terminated upon the termination of the Commitment of such other Bank. (c) In the event that a Bank (including a Bank which is a Defaulting Bank) determines that, for any reason (other than the failure of MBIA to satisfy the conditions set forth in Section 4.2), it will not make available to the Administrative Agent the full amount of a Loan required to be made by it pursuant to this Agreement on the date specified for a borrowing hereunder pursuant to Section 2.2, it use commercially reasonable efforts to give notice (a "Nonfunding Notice") thereof to MBIA and the Administrative Agent not later than 12:00 noon (New York City time) on the Business Day immediately preceding the date of such borrowing. In the event that a Bank shall have given a Nonfunding Notice, or in the event that any Bank for any reason (other than the failure of MBIA to satisfy the conditions set forth in Section 4.2) fails to make available to the Administrative Agent the full amount of a Loan required to be made by it pursuant to this Agreement by 12:00 noon (New York City time) on the date specified for a borrowing hereunder pursuant to Section 2.2, such Bank shall thereupon become a "Defaulting Bank", and the amount of the Loan identified in the Nonfunding Notice or any other amount of a Loan which a Defaulting Bank was required but failed to advance when required hereunder shall be a "Defaulted Amount". (d) The Administrative Agent shall notify MBIA and each Fronting Bank (if any) with respect to a Defaulting Bank (i) promptly following the Administrative Agent's receipt of any Nonfunding Notice from such Defaulting Bank, which notice shall describe the contents of such Nonfunding Notice, identify the Defaulting Bank and state the date on which the Loan described in such Nonfunding Notice is required to be made, the Defaulting Bank's Defaulted Amount and such Fronting Bank's Fronting Bank Percentage thereof, and (ii) unless described in a notice given pursuant to clause (i), not later than 1:00 p.m. (New York City time) on the date on which such Defaulting Bank failed to make available to the Administrative Agent the full amount of a Loan required to be made by it pursuant to this Agreement, which notice shall identify the Defaulting Bank and state the amount of the Defaulting Bank's Loan which was not made available and such Fronting Bank's Fronting Bank Percentage thereof. (e) Each Fronting Bank receiving a notice from the Administrative Agent pursuant to Section 2.11(d) shall, (i) not later than 12:00 noon (New York City time) on the date specified in such notice, if such notice was received prior to such date, or (ii) not later than 4:00 p.m. (New York City time) on such date, if such notice was received on such date, in either case subject to the satisfaction of the conditions set forth in Section 4.2, make available through its applicable Lending Office to the Administrative Agent at the Administrative Agent's Office for such account as the Administrative Agent shall designate, a Fronting Bank Loan in the amount of its Fronting Bank Percentage of the Defaulted Amount specified in such notice, in immediately available funds; provided that the aggregate amount of Fronting Bank Loans (determined without regard to any repayments or purchases thereof) which a Fronting Bank is required to make in respect of a Defaulting Bank shall not exceed its Fronting Bank Commitment with respect to such Defaulting Bank. Such funds received by the Administrative Agent shall be disbursed to MBIA as provided in Section 2.2(c). (f) Fronting Bank Loans shall constitute Tranche A Loans or Tranche B Loans, as the case may be, for all purposes under this Agreement and the Loan Documents, except as otherwise provided herein. Upon making of a Fronting Bank Loan by a Fronting Bank pursuant to this Section 2.11, such Fronting Bank, to the extent of such Fronting Bank Loan, shall have all the rights, but none of the obligations, of the Defaulting Bank hereunder in respect of the related Defaulted Amount, including, but not limited to, the right to receive the Defaulting Bank's pro rata share of any payment received in respect of Loans hereunder and the voting or consent rights of the Defaulting Bank in respect of the related Defaulted Amount and an amount of the Defaulting Bank's Commitment equal to such Defaulted Amount; provided that the Defaulting Bank's pro rata share of any payment received in respect of principal of Loans hereunder shall be allocated first to its Fronting Banks in respect of Fronting Bank Loans made in respect of such Defaulting Bank and then to the Loans of such Defaulting Banks. (g) No Fronting Bank Loan made by a Fronting Bank pursuant to this Section 2.11 shall relieve any Defaulting Bank of its obligations under this Agreement. Without limitation of other rights any party hereto may have against such Defaulting Bank, if one or more Fronting Banks have made one or more Fronting Bank Loans in respect of a Defaulting Bank, such Defaulting Bank shall on demand by a Fronting Bank, advance funds in respect of the aggregate Defaulted Amount in respect of which such Fronting Bank made Fronting Bank Loans pursuant to clause (i) or clause (ii) below: (i) If such Fronting Bank elects to have funds provided under this clause (i), the Defaulting Bank, without regard to any failure of the conditions set forth in Section 4.2 to be satisfied with respect to such Loan, shall make a Tranche A Loan or Tranche B Loan, as the case may be, to MBIA hereunder in the amount of the aggregate outstanding principal amount of the Fronting Bank Loans of such Fronting Bank in respect of such Defaulting Bank and simultaneously purchase from such Fronting Bank the right to receive the accrued and unpaid interest on such Fronting Bank Loans for a purchase price equal to the amount of such accrued and unpaid interest. Any Loan described in this clause (i) shall be made available by the Defaulting Bank through its applicable Lending Office to the Administrative Agent at the Administrative Agent's Office for such account as the Administrative Agent shall designate, in immediately available funds. On any date on which any such amounts are made available to the Administrative Agent by a Defaulting Bank, the Administrative Agent shall notify MBIA and each affected Fronting Bank and shall disburse such amounts in like funds by transferring such amounts to the affected Fronting Banks, in proportion to their respective Fronting Bank Commitments relating to such Defaulting Bank. Such disbursement received by a Fronting Bank, to the extent thereof, shall be deemed to constitute the prepayment of outstanding principal amount of its Fronting Bank Loans relating to such Defaulting Bank and the purchase by such Defaulting Bank of the right to receive the accrued and unpaid interest thereon concurrently with the making of the Loan by such Defaulting Bank, but as between such Defaulting Bank and MBIA, such Fronting Bank Loans shall be deemed to be continued on such date as a Loan hereunder owed to such Defaulting Bank and interest thereon shall accrue from the date on which interest was last paid on such Fronting Bank Loans (or, if no interest has been paid thereon, from the date on which such Fronting Bank Loans were made). (ii) If such Fronting Bank elects to have funds provided under this clause (ii), the Defaulting Bank, without regard to any failure of the conditions set forth in Section 4.2 to be satisfied with respect to such Loan, shall purchase the Fronting Bank Loans of such Fronting Bank in respect of such Defaulting Bank or participations therein, in either case for a purchase price equal to the outstanding principal amount of the Fronting Bank Loans or portion thereof being purchased or in which a participation is being purchased, plus accrued and unpaid interest thereon. Such purchase price shall be made available by the Defaulting Bank through its applicable Lending Office to the Administrative Agent at the Administrative Agent's Office for such account as the Administrative Agent shall designate, in immediately available funds. On any date on which any such amounts are made available to the Administrative Agent by a Defaulting Bank, the Administrative Agent shall notify MBIA and each affected Fronting Bank and shall disburse such amounts in like funds by transferring such amounts to the affected Fronting Banks, in proportion to their respective Fronting Bank Commitments relating to such Defaulting Bank. Upon payment in accordance with this clause (ii) and to the extent of the payment received by a Fronting Bank representing the outstanding principal amount of its Fronting Bank Loans to such Defaulting Bank, at the election of such Fronting Bank either (A) such Fronting Bank shall be deemed to have assigned to the Defaulting Bank such portion of such Loan, in which case such portion shall cease to be a Fronting Bank Loan and shall be continued as a Loan hereunder made pursuant to the Commitment of such Defaulting Bank, and the outstanding principal amount thereof shall cease to be evidenced by the Fronting Bank Note held by such Fronting Bank and shall become evidenced by the Note held by such Defaulting Bank, without further action by any party, or (B) such Defaulting Bank shall be deemed to have purchased a participation in such Fronting Bank's Fronting Bank Loan pursuant to Section 10.8(c). In addition to the foregoing and to the rights of Fronting Banks to receive interest in respect of Fronting Bank Loans as provided herein (or payments of purchase price in respect thereof as provided in this Section 2.11), such Defaulting Bank shall pay compensation to its Fronting Banks on demand in respect of the outstanding principal amount of each Fronting Bank Loan made in respect of such Defaulting Bank calculated at a per annum rate equal to 2.00% for the period commencing on the date on which such Fronting Bank Loan was made and continuing until the date such Loan is repaid (including pursuant to clause (i) above) or the purchase price described in clause (ii) above is received by such Fronting Bank.
Appears in 1 contract
Sources: Credit Agreement (Mbia Inc)
Fronting Banks. (a) From time to time MBIA shall have ------------ -------------- the right, with the consent of the Administrative Agent and each affected Fronting Bank, to designate one or more Banks as Fronting Banks with respect to one or more other Banks under this Agreement. The designation of a Bank as a Fronting Bank shall become effective when (i) MBIA, the Administrative Agent and such Bank have entered into a Fronting Bank Supplement (or on such later date as may be set forth in such Fronting Bank Supplement), which shall set forth the Fronting Bank Commitment of such Bank with respect to each other Bank for which it is acting as Fronting Bank, and (ii) MBIA shall have duly executed and delivered to such Fronting Bank a Fronting Bank Note in the aggregate amount of its Fronting Bank Commitments, dated the date of such Fronting Bank Supplement (or of any applicable modification thereto), payable to the order of such Fronting Bank for the account of its applicable Lending Office and substantially in the form of Exhibit H hereto. Each Fronting Bank's Fronting Bank Note shall evidence Fronting Bank Loans made by such Fronting Bank pursuant to this Section 2.11 and otherwise shall constitute a Note for all purposes under this Agreement and the Loan Documents. A Fronting Bank Supplement may be amended or otherwise modified from time to time or terminated with the written consent of MBIA, the Administrative Agent and the Fronting Bank which is a party thereto.
(b) The Fronting Bank Commitment of each Fronting Bank with respect to another Bank shall be automatically reduced by an amount equal to its applicable Fronting Bank Percentage of the amount of any reduction in such other Bank's Commitment (including without limitation a reduction resulting from the termination of such Bank's Tranche B Commitment, if any). In addition, the Fronting Bank Commitment of each Fronting Bank with respect to another Bank shall be automatically reduced by an amount equal to its applicable Fronting Bank Percentage of the amount of the Commitment of such other Bank which is sold, assigned or otherwise transferred by such other Bank to another Person; provided that a participation granted by such -------- other Bank in accordance with Section 10.8(c) shall not constitute a sale, assignment or transfer for purposes of this paragraph. The Fronting Bank Commitment of each Fronting Bank with respect to another Bank shall be automatically terminated upon the termination of the Commitment of such other Bank.
(c) In the event that a Bank (including a Bank which is a Defaulting Bank) determines that, for any reason (other than the failure of MBIA to satisfy the conditions set forth in Section 4.2), it will not make available to the Administrative Agent the full amount of a Loan required to be made by it pursuant to this Agreement on the date specified for a borrowing hereunder pursuant to Section 2.2, it use commercially reasonable efforts to will give notice (a "Nonfunding Notice") thereof to ----------------- MBIA and the Administrative Agent not later than 12:00 noon (New York City time) on the Business Day immediately preceding the date of such borrowing. In the event that a Bank shall have given a Nonfunding Notice, or in the event that any Bank for any reason (other than the failure of MBIA to satisfy the conditions set forth in Section 4.2) fails to make available to the Administrative Agent the full amount of a Loan required to be made by it pursuant to this Agreement by 12:00 noon (New York City time) on the date specified for a borrowing hereunder pursuant to Section 2.2, such Bank shall thereupon become a "Defaulting Bank", and the amount of the Loan identified in the Nonfunding --------------- Notice or any other amount of a Loan which a Defaulting Bank was required but failed to advance when required hereunder shall be a "Defaulted Amount".. ----------------
(d) The Administrative Agent shall notify MBIA and each Fronting Bank (if any) with respect to a Defaulting Bank (i) promptly following the Administrative Agent's receipt of any Nonfunding Notice from such Defaulting Bank, which notice shall describe the contents of such Nonfunding Notice, identify the Defaulting Bank and state the date on which the Loan described in such Nonfunding Notice is required to be made, the Defaulting Bank's Defaulted Amount and such Fronting Bank's Fronting Bank Percentage thereof, and (ii) unless described in a notice given pursuant to clause (i), ) not later than 1:00 p.m. (New York City time) on the date on which such Defaulting Bank failed to make available to the Administrative Agent the full amount of a Loan required to be made by it pursuant to this Agreement, which notice shall identify the Defaulting Bank and state the amount of the Defaulting Bank's Loan which was not made available and such Fronting Bank's Fronting Bank Percentage thereof.
(e) Each Fronting Bank receiving a notice from the Administrative Agent pursuant to Section 2.11(d) shall, (i) not later than 12:00 noon (New York City time) on the date specified in such notice, if such notice was received prior to such date, or (ii) not later than 4:00 p.m. (New York City time) on such date, if such notice was received on such date, in either case subject to the satisfaction of the conditions set forth in Section 4.2, make available through its applicable Lending Office to the Administrative Agent at the Administrative Agent's Office for such account as the Administrative Agent shall designate, a Fronting Bank Loan in the amount of its Fronting Bank Percentage of the Defaulted Amount specified in such notice, in immediately available funds; provided that the aggregate amount of Fronting Bank Loans (determined without -------- regard to any repayments or purchases thereof) which a Fronting Bank is required to make in respect of a Defaulting Bank shall not exceed its Fronting Bank Commitment with respect to such Defaulting Bank. Such funds received by the Administrative Agent shall be disbursed to MBIA as provided in Section 2.2(c).
(f) Fronting Bank Loans shall constitute Tranche A Loans or Tranche B Loans, as the case may be, for all purposes under this Agreement and the Loan Documents, except as otherwise provided herein. Upon making of a Fronting Bank Loan by a Fronting Bank pursuant to this Section 2.11, such Fronting Bank, to the extent of such Fronting Bank Loan, shall have all the rights, but none of the obligations, of the Defaulting Bank hereunder in respect of the related Defaulted Amount, including, but not limited to, the right to receive the Defaulting Bank's pro rata share of any payment received in respect of Loans hereunder and the voting or consent rights of the Defaulting Bank in respect of the related Defaulted Amount and an amount of the Defaulting Bank's Commitment equal to such Defaulted Amount; provided -------- that the Defaulting Bank's pro rata share of any payment received in respect of principal of Loans hereunder shall be allocated first to its Fronting Banks in respect of Fronting Bank Loans made in respect of such Defaulting Bank and then to the Loans of such Defaulting Banks.
(g) No Fronting Bank Loan made by a Fronting Bank pursuant to this Section 2.11 shall relieve any Defaulting Bank of its obligations under this Agreement. Without limitation of other rights any party hereto may have against such Defaulting Bank, if one or more Fronting Banks have made one or more Fronting Bank Loans in respect of a Defaulting Bank, such Defaulting Bank shall on demand by a Fronting Bank, advance funds in respect of the aggregate Defaulted Amount in respect of which such Fronting Bank made Fronting Bank Loans pursuant to clause (i) or clause (ii) below:
(i) If such Fronting Bank elects to have funds provided under this clause (i), the Defaulting Bank, without regard to any failure of the conditions set forth in Section 4.2 to be satisfied with respect to such Loan, shall make a Tranche A Loan or Tranche B Loan, as the case may be, to MBIA hereunder in the amount of the aggregate outstanding principal amount of the Fronting Bank Loans of such Fronting Bank in respect of such Defaulting Bank and simultaneously purchase from such Fronting Bank the right to receive the accrued and unpaid interest on such Fronting Bank Loans for a purchase price equal to the amount of such accrued and unpaid interest. Any Loan described in this clause (i) shall be made available by the Defaulting Bank through its applicable Lending Office to the Administrative Agent at the Administrative Agent's Office for such account as the Administrative Agent shall designate, in immediately available funds. On any date on which any such amounts are made available to the Administrative Agent by a Defaulting Bank, the Administrative Agent shall notify MBIA and each affected Fronting Bank and shall disburse such amounts in like funds by transferring such amounts to the affected Fronting Banks, in proportion to their respective Fronting Bank Commitments relating to such Defaulting Bank. Such disbursement received by a Fronting Bank, to the extent thereof, shall be deemed to constitute the prepayment of outstanding principal amount of its Fronting Bank Loans relating to such Defaulting Bank and the purchase by such Defaulting Bank of the right to receive the accrued and unpaid interest thereon concurrently with the making of the Loan by such Defaulting Bank, but as between such Defaulting Bank and MBIA, such Fronting Bank Loans shall be deemed to be continued on such date as a Loan hereunder owed to such Defaulting Bank and interest thereon shall accrue from the date on which interest was last paid on such Fronting Bank Loans (or, if no interest has been paid thereon, from the date on which such Fronting Bank Loans were made).
(ii) If such Fronting Bank elects to have funds provided under this clause (ii), the Defaulting Bank, without regard to any failure of the conditions set forth in Section 4.2 to be satisfied with respect to such Loan, shall purchase the Fronting Bank Loans of such Fronting Bank in respect of such Defaulting Bank or participations therein, in either case for a purchase price equal to the outstanding principal amount of the Fronting Bank Loans or portion thereof being purchased or in which a participation is being purchased, plus accrued and unpaid interest thereon. Such purchase price shall be made available by the Defaulting Bank through its applicable Lending Office to the Administrative Agent at the Administrative Agent's Office for such account as the Administrative Agent shall designate, in immediately available funds. On any date on which any such amounts are made available to the Administrative Agent by a Defaulting Bank, the Administrative Agent shall notify MBIA and each affected Fronting Bank and shall disburse such amounts in like funds by transferring such amounts to the affected Fronting Banks, in proportion to their respective Fronting Bank Commitments relating to such Defaulting Bank. Upon payment in accordance with this clause (ii) and to the extent of the payment received by a Fronting Bank representing the outstanding principal amount of its Fronting Bank Loans to such Defaulting Bank, at the election of such Fronting Bank either (A) such Fronting Bank shall be deemed to have assigned to the Defaulting Bank such portion of such Loan, in which case such portion shall cease to be a Fronting Bank Loan and shall be continued as a Loan hereunder made pursuant to the Commitment of such Defaulting Bank, and the outstanding principal amount thereof shall cease to be evidenced by the Fronting Bank Note held by such Fronting Bank and shall become evidenced by the Note held by such Defaulting Bank, ; without further action by any party, or (B) such Defaulting Bank shall be deemed to have purchased a participation in the such Fronting Bank's Fronting Bank Loan pursuant to Section 10.8(c). In addition to the foregoing and to the rights of Fronting Banks to receive interest in respect of Fronting Bank Loans as provided herein (or payments of purchase price in respect thereof as provided in this Section 2.11), such Defaulting Bank shall pay compensation to its Fronting Banks on demand in respect of the outstanding principal amount of each Fronting Bank Loan made in respect of such Defaulting Bank calculated at a per annum rate equal to 2.00% for the period commencing on the date on which such Fronting Bank Loan was made and continuing until the date such Loan is repaid (including pursuant to clause (i) above) or the purchase price described in clause (ii) above is received by such Fronting Bank.
Appears in 1 contract
Sources: Credit Agreement (Mbia Inc)
Fronting Banks. (a) From time to time MBIA shall have the right, with the consent of the Administrative Agent and each affected Fronting Bank, to designate one or more Banks as Fronting Banks with respect to one or more other Banks under this Agreement. The designation of a Bank as a Fronting Bank shall become effective when (i) MBIA, the Administrative Agent and such Bank have entered into a Fronting Bank Supplement (or on such later date as may be set forth in such Fronting Bank Supplement), which shall set forth the Fronting Bank Commitment of such Bank with respect to each other Bank for which it is acting as Fronting Bank, and (ii) MBIA shall have duly executed and delivered to such Fronting Bank a Fronting Bank Note in the aggregate amount of its Fronting Bank Commitments, dated the date of such Fronting Bank Supplement (or of any applicable modification thereto), payable to the order of such Fronting Bank for the account of its applicable Lending Office and substantially in the form of Exhibit H hereto. Each Fronting Bank's ’s Fronting Bank Note shall evidence Fronting Bank Loans made by such Fronting Bank pursuant to this Section 2.11 and otherwise shall constitute a Note for all purposes under this Agreement and the Loan Documents. A Fronting Bank Supplement may be amended or otherwise modified from time to time or terminated with the written consent of MBIA, the Administrative Agent and the Fronting Bank which is a party thereto.
(b) The Fronting Bank Commitment of each Fronting Bank with respect to another Bank shall be automatically reduced by an amount equal to its applicable Fronting Bank Percentage of the amount of any reduction in such other Bank's Commitment (including without limitation a reduction resulting from the termination of such Bank's Tranche B ’s Commitment, if any). In addition, the Fronting Bank Commitment of each Fronting Bank with respect to another Bank shall be automatically reduced by an amount equal to its applicable Fronting Bank Percentage of the amount of the Commitment of such other Bank which is sold, assigned or otherwise transferred by such other Bank to another Person; provided that a participation granted by such other Bank in accordance with Section 10.8(c) shall not constitute a sale, assignment or transfer for purposes of this paragraph. The Fronting Bank Commitment of each Fronting Bank with respect to another Bank shall be automatically terminated upon the termination of the Commitment of such other Bank.
(c) In the event that a Bank (including a Bank which is a Defaulting Bank) determines that, for any reason (other than the failure of MBIA to satisfy the conditions set forth in Section 4.2), it will not make available to the Administrative Agent the full amount of a Loan required to be made by it pursuant to this Agreement on the date specified for a borrowing hereunder pursuant to Section 2.2, it use commercially reasonable efforts to give notice (a "“Nonfunding Notice"”) thereof to MBIA and the Administrative Agent not later than 12:00 noon (New York City time) on the Business Day immediately preceding the date of such borrowing. In the event that a Bank shall have given a Nonfunding Notice, or in the event that any Bank for any reason (other than the failure of MBIA to satisfy the conditions set forth in Section 4.2) fails to make available to the Administrative Agent the full amount of a Loan required to be made by it pursuant to this Agreement by 12:00 noon (New York City time) on the date specified for a borrowing hereunder pursuant to Section 2.2, such Bank shall thereupon become a "“Defaulting Bank"”, and the amount of the Loan identified in the Nonfunding Notice or any other amount of a Loan which a Defaulting Bank was required but failed to advance when required hereunder shall be a "“Defaulted Amount"”.
(d) The Administrative Agent shall notify MBIA and each Fronting Bank (if any) with respect to a Defaulting Bank (i) promptly following the Administrative Agent's ’s receipt of any Nonfunding Notice from such Defaulting Bank, which notice shall describe the contents of such Nonfunding Notice, identify the Defaulting Bank and state the date on which the Loan described in such Nonfunding Notice is required to be made, the Defaulting Bank's ’s Defaulted Amount and such Fronting Bank's ’s Fronting Bank Percentage thereof, and (ii) unless described in a notice given pursuant to clause (i), not later than 1:00 p.m. (New York City time) on the date on which such Defaulting Bank failed to make available to the Administrative Agent the full amount of a Loan required to be made by it pursuant to this Agreement, which notice shall identify the Defaulting Bank and state the amount of the Defaulting Bank's ’s Loan which was not made available and such Fronting Bank's ’s Fronting Bank Percentage thereof.
(e) Each Fronting Bank receiving a notice from the Administrative Agent pursuant to Section 2.11(d) shall, (i) not later than 12:00 noon (New York City time) on the date specified in such notice, if such notice was received prior to such date, or (ii) not later than 4:00 p.m. (New York City time) on such date, if such notice was received on such date, in either case subject to the satisfaction of the conditions set forth in Section 4.2, make available through its applicable Lending Office to the Administrative Agent at the Administrative Agent's ’s Office for such account as the Administrative Agent shall designate, a Fronting Bank Loan in the amount of its Fronting Bank Percentage of the Defaulted Amount specified in such notice, in immediately available funds; provided that the aggregate amount of Fronting Bank Loans (determined without regard to any repayments or purchases thereof) which a Fronting Bank is required to make in respect of a Defaulting Bank shall not exceed its Fronting Bank Commitment with respect to such Defaulting Bank. Such funds received by the Administrative Agent shall be disbursed to MBIA as provided in Section 2.2(c).
(f) Fronting Bank Loans shall constitute Tranche A Loans or Tranche B Loans, as the case may be, for all purposes under this Agreement and the Loan Documents, except as otherwise provided herein. Upon making of a Fronting Bank Loan by a Fronting Bank pursuant to this Section 2.11, such Fronting Bank, to the extent of such Fronting Bank Loan, shall have all the rights, but none of the obligations, of the Defaulting Bank hereunder in respect of the related Defaulted Amount, including, but not limited to, the right to receive the Defaulting Bank's ’s pro rata share of any payment received in respect of Loans hereunder and the voting or consent rights of the Defaulting Bank in respect of the related Defaulted Amount and an amount of the Defaulting Bank's ’s Commitment equal to such Defaulted Amount; provided that the Defaulting Bank's ’s pro rata share of any payment received in respect of principal of Loans hereunder shall be allocated first to its Fronting Banks in respect of Fronting Bank Loans made in respect of such Defaulting Bank and then to the Loans of such Defaulting Banks.
(g) No Fronting Bank Loan made by a Fronting Bank pursuant to this Section 2.11 shall relieve any Defaulting Bank of its obligations under this Agreement. Without limitation of other rights any party hereto may have against such Defaulting Bank, if one or more Fronting Banks have made one or more Fronting Bank Loans in respect of a Defaulting Bank, such Defaulting Bank shall on demand by a Fronting Bank, advance funds in respect of the aggregate Defaulted Amount in respect of which such Fronting Bank made Fronting Bank Loans pursuant to clause (i) or clause (ii) below:
(i) If such Fronting Bank elects to have funds provided under this clause (i), the Defaulting Bank, without regard to any failure of the conditions set forth in Section 4.2 to be satisfied with respect to such Loan, shall make a Tranche A Loan or Tranche B Loan, as the case may be, to MBIA hereunder in the amount of the aggregate outstanding principal amount of the Fronting Bank Loans of such Fronting Bank in respect of such Defaulting Bank and simultaneously purchase from such Fronting Bank the right to receive the accrued and unpaid interest on such Fronting Bank Loans for a purchase price equal to the amount of such accrued and unpaid interest. Any Loan described in this clause (i) shall be made available by the Defaulting Bank through its applicable Lending Office to the Administrative Agent at the Administrative Agent's ’s Office for such account as the Administrative Agent shall designate, in immediately available funds. On any date on which any such amounts are made available to the Administrative Agent by a Defaulting Bank, the Administrative Agent shall notify MBIA and each affected Fronting Bank and shall disburse such amounts in like funds by transferring such amounts to the affected Fronting Banks, in proportion to their respective Fronting Bank Commitments relating to such Defaulting Bank. Such disbursement received by a Fronting Bank, to the extent thereof, shall be deemed to constitute the prepayment of outstanding principal amount of its Fronting Bank Loans relating to such Defaulting Bank and the purchase by such Defaulting Bank of the right to receive the accrued and unpaid interest thereon concurrently with the making of the Loan by such Defaulting Bank, but as between such Defaulting Bank and MBIA, such Fronting Bank Loans shall be deemed to be continued on such date as a Loan hereunder owed to such Defaulting Bank and interest thereon shall accrue from the date on which interest was last paid on such Fronting Bank Loans (or, if no interest has been paid thereon, from the date on which such Fronting Bank Loans were made).
(ii) If such Fronting Bank elects to have funds provided under this clause (ii), the Defaulting Bank, without regard to any failure of the conditions set forth in Section 4.2 to be satisfied with respect to such Loan, shall purchase the Fronting Bank Loans of such Fronting Bank in respect of such Defaulting Bank or participations therein, in either case for a purchase price equal to the outstanding principal amount of the Fronting Bank Loans or portion thereof being purchased or in which a participation is being purchased, plus accrued and unpaid interest thereon. Such purchase price shall be made available by the Defaulting Bank through its applicable Lending Office to the Administrative Agent at the Administrative Agent's ’s Office for such account as the Administrative Agent shall designate, in immediately available funds. On any date on which any such amounts are made available to the Administrative Agent by a Defaulting Bank, the Administrative Agent shall notify MBIA and each affected Fronting Bank and shall disburse such amounts in like funds by transferring such amounts to the affected Fronting Banks, in proportion to their respective Fronting Bank Commitments relating to such Defaulting Bank. Upon payment in accordance with this clause (ii) and to the extent of the payment received by a Fronting Bank representing the outstanding principal amount of its Fronting Bank Loans to such Defaulting Bank, at the election of such Fronting Bank either (A) such Fronting Bank shall be deemed to have assigned to the Defaulting Bank such portion of such Loan, in which case such portion shall cease to be a Fronting Bank Loan and shall be continued as a Loan hereunder made pursuant to the Commitment of such Defaulting Bank, and the outstanding principal amount thereof shall cease to be evidenced by the Fronting Bank Note held by such Fronting Bank and shall become evidenced by the Note held by such Defaulting Bank, without further action by any party, or (B) such Defaulting Bank shall be deemed to have purchased a participation in such Fronting Bank's ’s Fronting Bank Loan pursuant to Section 10.8(c). In addition to the foregoing and to the rights of Fronting Banks to receive interest in respect of Fronting Bank Loans as provided herein (or payments of purchase price in respect thereof as provided in this Section 2.11), such Defaulting Bank shall pay compensation to its Fronting Banks on demand in respect of the outstanding principal amount of each Fronting Bank Loan made in respect of such Defaulting Bank calculated at a per annum rate equal to 2.00% for the period commencing on the date on which such Fronting Bank Loan was made and continuing until the date such Loan is repaid (including pursuant to clause (i) above) or the purchase price described in clause (ii) above is received by such Fronting Bank.
Appears in 1 contract
Sources: Credit Agreement (Mbia Inc)