Defaulting Banks. Notwithstanding any provision of this Agreement to the contrary, if any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank: (a) Commitment Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Bank pursuant to Section 2.5(a); (b) the Commitment and Outstanding Credit Exposure of such Defaulting Bank shall not be included in determining whether the Majority Banks have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.1); provided, that, except as otherwise provided in Section 10.1, this clause (b) shall not apply to the vote of a Defaulting Bank in the case of an amendment, waiver or other modification requiring the consent of such Bank or each Bank directly affected thereby; (c) if any LC Obligations exist at the time a Bank becomes a Defaulting Bank then: (i) so long as no Default or Event of Default shall be continuing immediately before or after giving effect to such reallocation, all or any part of such LC Obligation shall be reallocated among the non-Defaulting Banks in accordance with their respective Pro Rata Share but only to the extent that (x) the sum of all non-Defaulting Banks’ Outstanding Credit Exposure does not exceed the total of all non-Defaulting Banks’ Commitments, (y) no Bank’s Outstanding Credit Exposure shall exceed its Commitment and (z) the conditions set forth in Section 11.2 are satisfied at such time; (ii) if the reallocation described in subclause (i) above cannot, or can only partially, be effected, the Company shall within one (1) Business Day following notice by the Agent, cash collateralize for the benefit of the relevant LC Issuer such Defaulting Bank’s Pro Rata Share of the LC Obligations (after giving effect to any partial reallocation pursuant to subclause (i) above) in accordance with the procedures set forth in Section 9.2 for so long as such LC Obligation is outstanding; (iii) if the Company cash collateralizes any portion of such Defaulting Bank’s Pro Rata Share of the LC Obligations pursuant this clause (c), the Company shall not be required to pay any fees to such Defaulting Bank pursuant to Section 3.4 with respect to such Defaulting Bank’s Pro Rata Share of the LC Obligations during the period such Defaulting Bank’s Pro Rata Share of the LC Obligations is cash collateralized; (iv) if the non-Defaulting Banks’ Pro Rata Share of the LC Obligations is reallocated pursuant to this clause (c), then the fees payable to the Banks pursuant to Section 2.5(a) and Section 3.4 shall be adjusted in accordance with such non-Defaulting Banks’ Pro Rata Shares; or (v) if any Defaulting Bank’s Pro Rata Share of the LC Obligations is neither reallocated nor cash collateralized pursuant to this clause (c), then, without prejudice to any rights or remedies of any LC Issuer or any Bank hereunder, all fees that otherwise would have been payable to such Defaulting Bank (solely with respect to the portion of such Defaulting Bank’s Commitment that was utilized by such LC Obligations) and LC Fees payable under Section 3.4 with respect to such Defaulting Bank’s Pro Rata Share of the LC Obligations shall be payable to the applicable LC Issuer until such Defaulting Bank’s Pro Rata Share of the LC Obligation is cash collateralized and/or reallocated; and (d) so long as any Bank is a Defaulting Bank, no LC Issuer shall be required to issue or Modify any Facility LC, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Banks and/or cash collateral will be provided by the Company in accordance with clause (c) above, and participating interests in any such newly issued or Modified Facility LC shall be allocated among non-Defaulting Banks in a manner consistent with clause(c)(i) above (and Defaulting Banks shall not participate therein). (e) If (i) a Bankruptcy Event with respect to a Parent of any Bank shall occur following the date hereof and for so long as such event shall continue or (ii) any LC Issuer has a good faith belief that any Bank has defaulted in fulfilling its obligations under one or more other agreements in which such Bank commits to extend credit, such LC Issuer shall not be required to issue, amend or increase any Facility LC, unless such LC Issuer, as the case may be, shall have entered into arrangements with the Company or such Bank, satisfactory to such LC Issuer, as the case may be, to defease any risk to it in respect of such Bank hereunder. (f) In the event that the Agent, the Company, and each LC Issuer each agrees that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the Banks’ Pro Rata Shares of the LC Obligations shall be readjusted to reflect the inclusion of such Bank’s Commitment and on such date such Bank shall purchase at par such of the Loans of the other Banks as the Agent shall determine may be necessary in order for such Bank to hold such Loans in accordance with its Pro Rata Share of the Aggregate Commitment; provided, that if the Company cash collateralized any portion of such Defaulting Bank’s Pro Rata Share of the LC Obligations pursuant to Section 4.7(c), such cash shall be returned to the Company.
Appears in 3 contracts
Sources: Revolving Credit Agreement (Consumers Energy Co), Revolving Credit Agreement (CMS Energy Corp), Revolving Credit Agreement (CMS Energy Corp)
Defaulting Banks. Notwithstanding any provision of this Agreement or any other Loan Document to the contrary, if any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Commitment Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Bank pursuant to Section 2.5(a3.2(a);
(b) the Commitment and Outstanding Extensions of Credit Exposure of such Defaulting Bank shall not be included in determining whether all Banks (or each Bank) or the Majority Banks have taken or may take any action hereunder (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 10.1); provided, that, except as otherwise provided in Section 10.1, that this clause (b) shall not apply to the vote of a Defaulting Bank in the case of an amendment, waiver or other modification requiring the consent of such Bank or each Bank directly affected thereby if such Bank is an affected Bank; provided, further, that there shall not be any amendment, modification or waiver (i) of any provision of Section 4.2 or Section 10.1 in a manner that would alter the pro rata sharing of payments required thereby, or (ii) causing the reduction of the percentage specified in the definition of Majority Banks, or (iii) causing the consent to the assignment or transfer by the Borrower of any of its respective rights and obligations under this Agreement and the other Loan Documents, in each case without the consent of such Bank;
(c) if any LC L/C Obligations exist at the time a such Bank becomes a Defaulting Bank then:;
(i) so long as no Default or Event of Default shall be continuing immediately before or after giving effect to such reallocation, all or any part of the L/C Exposure of such LC Obligation Defaulting Bank shall be reallocated (effective as of the date such Bank becomes a Defaulting Bank) among the non-Defaulting Banks in accordance with their respective Pro Rata Share Revolving Percentages, but only to the extent that (x) the sum of all non-Defaulting Banks’ Outstanding Extensions of Credit plus such Defaulting Bank’s L/C Exposure does not exceed the total of all non-Defaulting Banks’ Commitments, (y) no Bank’s Outstanding Credit Exposure shall exceed its Commitment and (z) the conditions set forth in Section 11.2 are satisfied at such time;
(ii) if the reallocation described in subclause clause (i) above cannot, or can only partially, be effected, the Company shall Borrower shall, within one (1) two Business Day Days following the Borrower’s receipt of written notice by the Administrative Agent, cash collateralize for the benefit of the relevant LC Issuer applicable Issuing Banks only the Borrower’s obligations corresponding to such Defaulting Bank’s Pro Rata Share of the LC Obligations L/C Exposure (after giving effect to any partial reallocation pursuant to subclause clause (i) above) in accordance with the procedures set forth in Section 9.2 8.2 for so long as such LC Obligation L/C Exposure is outstanding;
(iii) if the Company Borrower cash collateralizes any portion of such Defaulting Bank’s Pro Rata Share of the LC Obligations L/C Exposure pursuant this to clause (c)ii) above, the Company Borrower shall not be required to pay any fees to such Defaulting Bank pursuant to Section 3.4 2.5(c) with respect to such Defaulting Bank’s Pro Rata Share of the LC Obligations L/C Exposure during the period such Defaulting Bank’s Pro Rata Share of the LC Obligations L/C Exposure is cash collateralized;
(iv) if all or any portion of such Defaulting Bank’s L/C Exposure is reallocated pursuant to clause (i) above, then the Letter of Credit participation fees that otherwise would have been payable to such Defaulting Bank pursuant to Section 2.5(c)(i) with respect to such Defaulting Bank’s reallocated L/C Exposure shall be payable to the non-Defaulting Banks’ Pro Rata Share of the LC Obligations is reallocated pursuant to this clause (c), then the fees payable to the Banks pursuant to Section 2.5(a) and Section 3.4 shall be adjusted in accordance with such non-Defaulting Banks’ Pro Rata SharesRevolving Percentages after giving effect to such reallocation; orand
(v) if all or any portion of such Defaulting Bank’s Pro Rata Share of the LC Obligations L/C Exposure is neither reallocated nor cash collateralized pursuant to this clause (c)i) or (ii) above, then, without prejudice to any rights or remedies of any LC Issuer Issuing Bank or any other Bank hereunder, all Letter of Credit participation fees that otherwise would have been payable to such Defaulting Bank (solely with respect to the portion of such Defaulting Bank’s Commitment that was utilized by such LC Obligations) and LC Fees payable under Section 3.4 2.5(c)(i) with respect to such Defaulting Bank’s Pro Rata Share of the LC Obligations unreallocated L/C Exposure shall be payable to the applicable LC Issuer Issuing Banks, ratably based on the portion of such L/C Exposure attributable to Letters of Credit issued by each Issuing Bank, until and to the extent that such Defaulting Bank’s Pro Rata Share of the LC Obligation L/C Exposure is reallocated and/or cash collateralized and/or reallocated; andpursuant to clause (i) or (ii) above;
(d) so long as any such Bank is a Defaulting Bank, no LC Issuer Issuing Bank shall be required to issue issue, amend or Modify increase any Facility LCLetter of Credit, unless it is the Issuing Banks are satisfied that the related exposure Defaulting Bank’s then outstanding L/C Exposure, will be 100% covered by the Commitments of the non-Defaulting Banks and/or and, to the extent such 100% coverage is not achieved, by cash collateral which will be provided by the Company Borrower in accordance with clause (c) aboveSection 2.8(c), and participating interests in any such newly issued or Modified Facility LC increased Letter of Credit shall be allocated among non-Defaulting Banks in a manner consistent with clause(c)(iSection 2.8(c)(i) above (and such Defaulting Banks Bank shall not participate therein).
(e) . If (i) a Bankruptcy Event or a Bail-In Action with respect to a Parent of any Bank shall occur following the date hereof and for so long as such event shall continue or (ii) any LC Issuer the Issuing Bank has a good faith belief that any Bank has defaulted in fulfilling its obligations under one or more other agreements in which to extend credit generally (such Bank commits to extend creditreferenced in clauses (i) and (ii), such LC Issuer a “Disregarded Bank”), the Issuing Bank shall not be required to issue, amend or increase any Facility LCLetter of Credit, unless such LC Issuerthe Issuing Banks are satisfied that the Disregarded Bank’s then outstanding L/C Exposure, as will be 100% covered by the case may be, shall have entered into arrangements with Commitments of the Company or such Bank, satisfactory to such LC Issuer, as the case may benon-Disregarded Banks and, to defease the extent such 100% coverage is not achieved, by cash collateral which will be provided by the Borrower in the manner consistent with Section 2.8(c), and participating interests in any risk to it newly issued or increased Letter of Credit shall be allocated among the non-Disregarded Banks in respect of a manner consistent with Section 2.8(c) (and such Disregarded Bank hereunder.
(f) shall not participate therein). In the event that the Administrative Agent, the Company, Borrower and each LC Issuer the Issuing Banks each agrees that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the Banks’ Pro Rata Shares L/C Exposures of the LC Obligations Banks shall be readjusted to reflect the inclusion of such Bank’s Commitment Commitment, and on such date such Bank shall purchase at par such of the Revolving Loans of the other Banks as the Administrative Agent shall determine may be necessary in order for such Bank to hold such Revolving Loans in accordance with its Pro Rata Share of Revolving Percentage. The rights and remedies against, and with respect to, a Defaulting Bank under this Section 2.8 are in addition to, and cumulative and not in limitation of, all other rights and remedies that the Aggregate Commitment; providedAdministrative Agent and each Bank, that if each Issuing Bank or the Company cash collateralized Borrower may at any portion of time have against, or with respect to, such Defaulting Bank’s Pro Rata Share of the LC Obligations pursuant to Section 4.7(c), such cash shall be returned to the Company.
Appears in 3 contracts
Sources: Credit Agreement (Centerpoint Energy Resources Corp), Credit Agreement (Centerpoint Energy Resources Corp), Credit Agreement (Centerpoint Energy Resources Corp)
Defaulting Banks. Notwithstanding any provision of this Agreement to the contrary, if any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Commitment Fees fees shall cease to accrue on the unfunded unused portion of the Commitment of such Defaulting Bank pursuant to Section 2.5(asubsection 2.4(a);
(b) the Commitment and Aggregate Outstanding Extensions of Credit Exposure of such Defaulting Bank shall not be included in determining whether all Banks, all affected Banks or the Majority Required Banks have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.1); provided, that, except as otherwise provided in Section 10.1, this clause (b) shall not apply to the vote of a Defaulting Bank in the case of an amendment, waiver or other modification requiring the consent of such Bank or each Bank directly affected thereby;
(c) if any LC Obligations exist at the time a Bank becomes a Defaulting Bank then:
pursuant to subsection 10.1); provided that (i) so long as no Default or Event of Default shall be continuing immediately before or after giving effect to such reallocation, all or any part of such LC Obligation shall be reallocated among the non-Defaulting Banks in accordance with their respective Pro Rata Share but only to the extent that (x) the sum of all non-Defaulting Banks’ Outstanding Credit Exposure does not exceed the total of all non-Defaulting Banks’ Commitments, (y) no Bank’s Outstanding Credit Exposure shall exceed its Commitment and (z) the conditions set forth in Section 11.2 are satisfied at such time;
(ii) if the reallocation described in subclause (i) above cannot, or can only partially, be effected, the Company shall within one (1) Business Day following notice by the Agent, cash collateralize for the benefit of the relevant LC Issuer such Defaulting Bank’s Pro Rata Share of the LC Obligations (after giving effect to any partial reallocation pursuant to subclause (i) above) in accordance with the procedures set forth in Section 9.2 for so long as such LC Obligation is outstanding;
(iii) if the Company cash collateralizes any portion of such Defaulting Bank’s Pro Rata Share of the LC Obligations pursuant this clause (c), the Company shall not be required to pay any fees to such Defaulting Bank pursuant to Section 3.4 with respect to such Defaulting Bank’s Pro Rata Share of the LC Obligations during the period such Defaulting Bank’s Pro Rata Share of the LC Obligations is cash collateralized;
(iv) if the non-Defaulting Banks’ Pro Rata Share of the LC Obligations is reallocated pursuant to this clause (c), then the fees payable to the Banks pursuant to Section 2.5(a) and Section 3.4 shall be adjusted in accordance with such non-Defaulting Banks’ Pro Rata Shares; or
(v) if any Defaulting Bank’s Pro Rata Share of the LC Obligations is neither reallocated nor cash collateralized pursuant to this clause (c), then, without prejudice to any rights or remedies of any LC Issuer or any Bank hereunder, all fees that otherwise would have been payable to such Defaulting Bank (solely with respect to the portion of such Defaulting Bank’s Commitment that was utilized by may not be increased or extended without its consent and (ii) the principal amount of, or interest or fees payable on, Loans may not be reduced or excused or the scheduled date of payment may not be postponed as to such LC Obligations) and LC Fees payable under Section 3.4 with respect to Defaulting Bank without such Defaulting Bank’s Pro Rata Share of the LC Obligations shall be payable to the applicable LC Issuer until such Defaulting Bank’s Pro Rata Share of the LC Obligation is cash collateralized and/or reallocatedconsent; and
(d) so long as any Bank is a Defaulting Bank, no LC Issuer shall be required to issue or Modify any Facility LC, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Banks and/or cash collateral will be provided by the Company in accordance with clause (c) above, and participating interests in any such newly issued or Modified Facility LC shall be allocated among non-Defaulting Banks in a manner consistent with clause(c)(i) above (and Defaulting Banks shall not participate therein).
(e) If (i) a Bankruptcy Event with respect to a Parent of any Bank shall occur following the date hereof and for so long as such event shall continue or (ii) any LC Issuer has a good faith belief that any Bank has defaulted in fulfilling its obligations under one or more other agreements in which such Bank commits to extend credit, such LC Issuer shall not be required to issue, amend or increase any Facility LC, unless such LC Issuer, as the case may be, shall have entered into arrangements with the Company or such Bank, satisfactory to such LC Issuer, as the case may be, to defease any risk to it in respect of such Bank hereunder.
(f) In the event that the Agent, Agent and the Company, and each LC Issuer Company each agrees that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the Banks’ Pro Rata Shares of the LC Obligations shall be readjusted to reflect the inclusion of such Bank’s Commitment and on such date such Bank shall purchase at par such of the Loans of the other Banks as the Agent shall determine may be necessary in order for such Bank to hold such Loans in accordance with its Pro Rata Share Commitment Percentage; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Aggregate Commitment; provided, that if the Company cash collateralized any portion of while such Bank was a Defaulting Bank’s Pro Rata Share of the LC Obligations pursuant to Section 4.7(c), such cash shall be returned to the Company.
Appears in 3 contracts
Sources: 364 Day Revolving Credit Agreement (Humana Inc), 364 Day Revolving Credit Agreement (Humana Inc), Delayed Draw Term Loan Credit Agreement (Humana Inc)
Defaulting Banks. Notwithstanding any provision of this Agreement or any other Loan Document to the contrary, if any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Commitment Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Bank pursuant to Section 2.5(a3.2(a);
(b) the Commitment and Outstanding Extensions of Credit Exposure of such Defaulting Bank shall not be included in determining whether all Banks (or each Bank) or the Majority Banks have taken or may take any action hereunder (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 10.1); provided, that, except as otherwise provided in Section 10.1, that this clause (b) shall not apply to the vote of a Defaulting Bank in the case of an amendment, waiver or other modification requiring the consent of such Bank or each Bank directly affected thereby if such Bank is an affected Bank; provided, further, that there shall not be any amendment, modification or waiver (i) of any provision of Section 4.2 or Section 10.1 in a manner that would alter the pro rata sharing of payments required thereby, or (ii) causing the reduction of the percentage specified in the definition of Majority Banks, or (iii) causing the consent to the assignment or transfer by the Borrower of any of its respective rights and obligations under this Agreement and the other Loan Documents, in each case without the consent of such Bank;
(c) if any LC Swingline Exposure or L/C Obligations exist at the time a such Bank becomes a Defaulting Bank then:;
(i) so long as no Default or Event of Default shall be continuing immediately before or after giving effect to such reallocation, all or any part of the Swingline Exposure and L/C Exposure of such LC Obligation Defaulting Bank shall be reallocated (effective as of the date such Bank becomes a Defaulting Bank) among the non-Defaulting Banks in accordance with their respective Pro Rata Share Revolving Percentages, but only to the extent that (x) the sum of all non-Defaulting Banks’ Outstanding Extensions of Credit plus such Defaulting Bank’s Swingline Exposure and L/C Exposure does not exceed the total of all non-Defaulting Banks’ Commitments, (y) no Bank’s Outstanding Credit Exposure shall exceed its Commitment and (z) the conditions set forth in Section 11.2 are satisfied at such time;
(ii) if the reallocation described in subclause clause (i) above cannot, or can only partially, be effected, the Company shall Borrower shall, within one (1) two Business Day Days following the Borrower’s receipt of written notice by the Administrative Agent, (x) first, prepay such Defaulting Bank’s Swingline Exposure and (y) second, cash collateralize for the benefit of the relevant LC Issuer applicable Issuing Banks only the Borrower’s obligations corresponding to such Defaulting Bank’s Pro Rata Share of the LC Obligations L/C Exposure (after giving effect to any partial reallocation pursuant to subclause clause (i) above) in accordance with the procedures set forth in Section 9.2 8.2 for so long as such LC Obligation L/C Exposure is outstanding;
(iii) if the Company Borrower cash collateralizes any portion of such Defaulting Bank’s Pro Rata Share of the LC Obligations L/C Exposure pursuant this to clause (c)ii) above, the Company Borrower shall not be required to pay any fees to such Defaulting Bank pursuant to Section 3.4 2.5(c) with respect to such Defaulting Bank’s Pro Rata Share of the LC Obligations L/C Exposure during the period such Defaulting Bank’s Pro Rata Share of the LC Obligations L/C Exposure is cash collateralized;
(iv) if all or any portion of such Defaulting Bank’s L/C Exposure is reallocated pursuant to clause (i) above, then the Letter of Credit participation fees that otherwise would have been payable to such Defaulting Bank pursuant to Section 2.5(c)(i) with respect to such Defaulting Bank’s reallocated L/C Exposure shall be payable to the non-Defaulting Banks’ Pro Rata Share of the LC Obligations is reallocated pursuant to this clause (c), then the fees payable to the Banks pursuant to Section 2.5(a) and Section 3.4 shall be adjusted in accordance with such non-Defaulting Banks’ Pro Rata SharesRevolving Percentages after giving effect to such reallocation; orand
(v) if all or any portion of such Defaulting Bank’s Pro Rata Share of the LC Obligations L/C Exposure is neither reallocated nor cash collateralized pursuant to this clause (c)i) or (ii) above, then, without prejudice to any rights or remedies of any LC Issuer Issuing Bank or any other Bank hereunder, all Letter of Credit participation fees that otherwise would have been payable to such Defaulting Bank (solely with respect to the portion of such Defaulting Bank’s Commitment that was utilized by such LC Obligations) and LC Fees payable under Section 3.4 2.5(c)(i) with respect to such Defaulting Bank’s Pro Rata Share of the LC Obligations unreallocated L/C Exposure shall be payable to the applicable LC Issuer Issuing Banks, ratably based on the portion of such L/C Exposure attributable to Letters of Credit issued by each Issuing Bank, until and to the extent that such Defaulting Bank’s Pro Rata Share of the LC Obligation L/C Exposure is reallocated and/or cash collateralized and/or reallocated; andpursuant to clause (i) or (ii) above;
(d) so long as any such Bank is a Defaulting Bank, the Swingline Lender shall not be required to fund any Swingline Loan and no LC Issuer Issuing Bank shall be required to issue issue, amend or Modify increase any Facility LCLetter of Credit, unless it the Swingline Lender is satisfied that the related exposure in respect of Swingline Loans, and the Issuing Banks are satisfied that the Defaulting Bank’s then outstanding L/C Exposure, will be 100% covered by the Commitments of the non-Defaulting Banks and/or and, to the extent such 100% coverage is not achieved, by cash collateral which will be provided by the Company Borrower in accordance with clause (c) aboveSection 2.8(c), and participating interests in any such newly made Swingline Loan or any newly issued or Modified Facility LC increased Letter of Credit shall be allocated among non-Defaulting Banks in a manner consistent with clause(c)(iSection 2.8(c)(i) above (and such Defaulting Banks Bank shall not participate therein).
(e) . If (i) a Bankruptcy Event with respect to a Parent of any Bank shall occur following the date hereof and for so long as such event shall continue or (ii) any LC Issuer the Swingline Lender or the Issuing Bank has a good faith belief that any Bank has defaulted in fulfilling its obligations under one or more other agreements in which to extend credit generally (such Bank commits referenced in clauses (i) and (ii), a “Disregarded Bank”), the Swingline Lender shall not be required to extend credit, such LC Issuer fund any Swingline Loan and the Issuing Bank shall not be required to issue, amend or increase any Facility LCLetter of Credit, unless such LC Issuer, as the case may be, shall have entered into arrangements with Swingline Lender is satisfied that the Company or such Bank, satisfactory to such LC Issuer, as the case may be, to defease any risk to it related exposure in respect of Swingline Loans, and the Issuing Banks are satisfied that the Disregarded Bank’s then outstanding L/C Exposure, will be 100% covered by the Commitments of the non-Disregarded Banks and, to the extent such 100% coverage is not achieved, by cash collateral which will be provided by the Borrower in the manner consistent with Section 2.8(c), and participating interests in any newly made Swingline Loan or any newly issued or increased Letter of Credit shall be allocated among the non-Disregarded Banks in a manner consistent with Section 2.8(c) (and such Disregarded Bank hereunder.
(f) shall not participate therein). In the event that the Administrative Agent, the CompanyBorrower, the Swingline Lender and each LC Issuer the Issuing Banks each agrees that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the Banks’ Pro Rata Shares Swingline Exposures and L/C Exposures of the LC Obligations Banks shall be readjusted to reflect the inclusion of such Bank’s Commitment Commitment, and on such date such Bank shall purchase at par such of the Revolving Loans of the other Banks as the Administrative Agent shall determine may be necessary in order for such Bank to hold such Revolving Loans in accordance with its Pro Rata Share of Revolving Percentage. The rights and remedies against, and with respect to, a Defaulting Bank under this Section 2.8 are in addition to, and cumulative and not in limitation of, all other rights and remedies that the Aggregate Commitment; providedAdministrative Agent and each Lender, that if each Issuing Bank, the Company cash collateralized Swingline Lender or the Borrower may at any portion of time have against, or with respect to, such Defaulting Bank’s Pro Rata Share of the LC Obligations pursuant to Section 4.7(c), such cash shall be returned to the Company.
Appears in 3 contracts
Sources: Credit Agreement (Centerpoint Energy Inc), Credit Agreement (Centerpoint Energy Inc), Credit Agreement (Centerpoint Energy Inc)
Defaulting Banks. Notwithstanding anything contained in Sections 2.8, 2.9 or any other provision of this Agreement to the contrary, if any Bank becomes a Defaulting BankBank then: all Letters of Credit Outstanding and Swing Loans outstanding at such time, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Commitment Fees shall cease to accrue on the unfunded portion and all Letters of the Commitment of such Defaulting Bank pursuant to Section 2.5(a);
(b) the Commitment and Outstanding Credit Exposure of such Defaulting Bank shall not be included in determining whether the Majority Banks have taken issued or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.1); provided, that, except as otherwise provided in Section 10.1, this clause (b) shall not apply to the vote of Swing Loans made while there exists a Defaulting Bank in the case of an amendment, waiver or other modification requiring the consent of such Bank or each Bank directly affected thereby;
(c) if any LC Obligations exist at the time a Bank becomes a Defaulting Bank then:
(i) so long as no Default or Event of Default shall be continuing immediately before or after giving effect to such reallocation, all or any part of such LC Obligation shall be reallocated among the non-Defaulting Banks in accordance with their respective Pro Rata Share Ratable Shares (such Ratable Shares shall be determined without reference to each Defaulting Bank’s Ratable Share) so long as no Potential Default or Event of Default exists on the date of reallocation and thereafter continues uncured, but only to the extent that (xa) the sum of all non-Defaulting Banks’ Revolving Credit Loans then outstanding plus the sum of such non-Defaulting Banks’ Ratable Share of the Dollar Equivalent of all Swing Loans then outstanding and Letters of Credit Outstanding Credit Exposure at such time does not exceed the total of all non-Defaulting Banks’ CommitmentsRevolving Credit Commitments and (b) the aggregate obligation of each non-Defaulting Bank to acquire, (y) no refinance or fund any participations in the Defaulting Bank’s portion of Letters of Credit Outstanding Credit Exposure and Swing Loans pursuant to reallocation contemplated above shall not exceed its Commitment and the positive difference between (zi) the conditions set forth in Section 11.2 are satisfied Revolving Credit Commitment of such Bank minus (ii) such Bank’s Revolving Credit Loans then outstanding plus such Bank’s Ratable Share of the Dollar Equivalent of all Swing Loans then outstanding and Letters of Credit Outstanding at such time;
(ii) if . If the reallocation described in subclause (i) above the preceding sentence cannot, or can only partially, be effected, the Company Borrowers shall within one (1) Business Day following notice by the Administrative Agent, (1) first, prepay outstanding Swing Loans and (2) second, cash collateralize for the benefit of the relevant LC Issuer such Defaulting Bank’s Pro Rata Share portion of the LC Obligations Letters of Credit Outstanding (in each case, after giving effect to any partial reallocation pursuant to subclause (i) above) in accordance with the procedures set forth in Section 9.2 for so long as immediately preceding sentence). To the extent such LC Obligation is outstanding;
(iii) if the Company cash collateralizes any portion Letters of such Defaulting Bank’s Pro Rata Share of the LC Obligations pursuant this clause (c), the Company shall not be required to pay any fees to such Defaulting Bank pursuant to Section 3.4 with respect to such Defaulting Bank’s Pro Rata Share of the LC Obligations during the period such Defaulting Bank’s Pro Rata Share of the LC Obligations is cash collateralized;
(iv) if the non-Defaulting Banks’ Pro Rata Share of the LC Obligations is Credit Outstanding and Swing Loans are reallocated pursuant to this clause (c)Section 2.14, then the fees payable to the Banks pursuant to Section 2.5(a2.8.2 (but not Section 2.3) and Section 3.4 shall be adjusted in accordance with such non-Defaulting Banks’ Pro Rata Ratable Shares; or
(v) if any . To the extent a portion of the Defaulting Bank’s Pro Rata Share Letters of the LC Obligations is neither reallocated nor Credit outstanding are cash collateralized pursuant to this clause (c)2) above, the Borrowers shall not be obligated to pay any fees to or for the account of such Defaulting Bank pursuant to Section 2.8.2 with respect to such Defaulting Bank’s Letter of Credit Outstandings during the period such Defaulting Bank’s Letter of Credit Outstandings are cash collateralized. To the extent such Letters of Credit Outstanding are not reallocated pursuant to this Section 2.14, or the Defaulting Bank’s Ratable Share of Letters of Credit Outstanding have not been cash collateralized, then, without prejudice to any rights or remedies of any LC Issuer the Issuing Bank or any Bank hereunder, all fees Commitment Fees that otherwise would have been payable to such Defaulting Bank (solely with respect to the portion of such Defaulting Bank’s Commitment that was utilized by such LC ObligationsLetters of Credit Outstanding) and LC Letter of Credit Fees payable under Section 3.4 with respect to such Defaulting Bank’s Pro Rata Ratable Share of the LC Obligations Letters of Credit Outstanding shall be payable to the applicable LC Issuer until such Issuing Bank. Subject to Section 11.23, nothing contained in this Section or elsewhere in this Agreement and no reallocation of any Defaulting Bank’s Pro Rata Ratable Share of the LC Obligation is cash collateralized and/or reallocated; and
(d) so long as any obligation hereunder shall relieve such Defaulting Bank is a Defaulting Bank, no LC Issuer shall be required of its obligation to issue or Modify fund any Facility LC, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Banks and/or cash collateral will be provided by the Company in accordance with clause (c) above, and participating interests in any such newly issued or Modified Facility LC shall be allocated among non-Defaulting Banks in a manner consistent with clause(c)(i) above (and Defaulting Banks shall not participate therein).
(e) If (i) a Bankruptcy Event with respect to a Parent portion of any Bank shall occur following the date hereof and for so long as amount owed by such event shall continue or (ii) any LC Issuer has a good faith belief that any Bank has defaulted in fulfilling its obligations under one or more other agreements in which such Bank commits to extend credit, such LC Issuer shall not be required to issue, amend or increase any Facility LC, unless such LC Issuer, as the case may be, shall have entered into arrangements with the Company or such Bank, satisfactory to such LC Issuer, as the case may be, to defease any risk to it in respect of such Defaulting Bank hereunder.
(f) . In the event that the Administrative Agent, the CompanyBorrower, and the Issuing Banks each LC Issuer each agrees agree that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the Banks’ Pro Rata Shares Letters of Credit Outstanding and the LC Obligations Swing Loans outstanding shall be readjusted to reflect the inclusion of such Bank’s Revolving Credit Commitment and on such date date, such Bank shall purchase at par such of the Loans of the other Banks as the Administrative Agent shall determine may be necessary in order for such Bank to hold such Loans in accordance with its Pro Rata Share of the Aggregate Commitment; provided, that if the Company cash collateralized any portion of such Defaulting Bank’s Pro Rata Share of the LC Obligations pursuant to Section 4.7(c), such cash shall be returned to the CompanyRatable Share.
Appears in 3 contracts
Sources: Credit Agreement (Triumph Group Inc), Credit Agreement (Triumph Group Inc), Credit Agreement (Triumph Group Inc)
Defaulting Banks. Notwithstanding any provision of this Agreement to the contrary, if any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Commitment Fees shall cease Notwithstanding anything to accrue on the unfunded portion contrary contained herein, the Maximum Credit Amount of the Commitment of such Defaulting Bank pursuant to Section 2.5(a);
(b) the Commitment and Outstanding Credit Exposure of such a Defaulting Bank shall not be included in determining whether all Banks, the Super Majority Banks or the Required Banks have taken or may take any action hereunder (including approval of any redetermination of the Borrowing Base pursuant to Article IV and any consent to any amendment or waiver pursuant to Section 10.114.2); provided, provided that, except as otherwise provided in Section 10.1any waiver, this clause (b) shall not apply to the vote of a Defaulting Bank in the case of an amendment, waiver amendment or other modification requiring the consent of all Banks or each affected Bank which affects such Defaulting Bank differently than other affected Banks shall require the consent of such Defaulting Bank; and provided further that in no event shall (i) the Commitment, Elected Commitment or Maximum Credit Amount of any Defaulting Bank be increased without the consent of such Defaulting Bank, or (ii) the Termination Date or any date fixed for any payment of principal of or interest on the Loan or any fees hereunder be postponed without the consent of such Defaulting Bank.
(b) If any Bank shall fail to make any payment referenced in clause (a) of the definition of “Defaulting Bank”, then the Administrative Agent may, in its discretion and notwithstanding any contrary provision hereof, (i) apply any amounts thereafter received by the Administrative Agent for the account of such Bank and for the benefit of the Administrative Agent or any Letter of Credit Issuer to satisfy such Bank’s obligations hereunder until all such unsatisfied obligations are fully paid, and/or (ii) hold any such amounts in a segregated account as cash collateral for, and application to, any future funding obligations of such Bank hereunder; in the case of each of (i) and (ii) above, in any order as determined by the Administrative Agent in its discretion; provided that, subject to Section 14.17, no reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against such Bank directly affected thereby;as a result of such Bank’s increased exposure following such reallocation.
(c) if Borrower shall not be obligated to pay the Administrative Agent any LC Obligations exist at Defaulting Bank’s ratable share of the time a fees described in Sections 2.11, 2.12 or 2.13 (notwithstanding anything to the contrary in such sections) for the period commencing on the day such Defaulting Bank becomes a Defaulting Bank then:
(i) so long as no Default or Event of Default shall be and continuing immediately before or after giving effect to such reallocation, all or any part of such LC Obligation shall be reallocated among the non-Defaulting Banks in accordance with their respective Pro Rata Share but only to the extent that (x) the sum of all non-Defaulting Banks’ Outstanding Credit Exposure does not exceed the total of all non-Defaulting Banks’ Commitments, (y) no Bank’s Outstanding Credit Exposure shall exceed its Commitment and (z) the conditions set forth in Section 11.2 are satisfied at such time;
(ii) if the reallocation described in subclause (i) above cannot, or can only partially, be effected, the Company shall within one (1) Business Day following notice by the Agent, cash collateralize for the benefit of the relevant LC Issuer such Defaulting Bank’s Pro Rata Share of the LC Obligations (after giving effect to any partial reallocation pursuant to subclause (i) above) in accordance with the procedures set forth in Section 9.2 for so long as such LC Obligation is outstanding;
(iii) if the Company cash collateralizes any portion of such Defaulting Bank’s Pro Rata Share of the LC Obligations pursuant this clause (c), the Company shall not be required to pay any fees to such Defaulting Bank pursuant to Section 3.4 with respect to such Defaulting Bank’s Pro Rata Share of the LC Obligations during the period such Defaulting Bank’s Pro Rata Share of the LC Obligations is cash collateralized;
(iv) if the non-Defaulting Banks’ Pro Rata Share of the LC Obligations is reallocated pursuant to this clause (c), then the fees payable to the Banks pursuant to Section 2.5(a) and Section 3.4 shall be adjusted in accordance with such non-Defaulting Banks’ Pro Rata Shares; or
(v) if any Defaulting Bank’s Pro Rata Share of the LC Obligations is neither reallocated nor cash collateralized pursuant to this clause (c), then, without prejudice to any rights or remedies of any LC Issuer or any Bank hereunder, all fees that otherwise would have been payable to such Defaulting Bank (solely with respect to the portion of such Defaulting Bank’s Commitment that was utilized by such LC Obligations) and LC Fees payable under Section 3.4 with respect to such Defaulting Bank’s Pro Rata Share of the LC Obligations shall be payable to the applicable LC Issuer until such Defaulting Bank’s Pro Rata Share of the LC Obligation is cash collateralized and/or reallocated; and
(d) so long as any Bank is a Defaulting Bank, no LC Issuer shall be required to issue or Modify any Facility LC, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Banks and/or cash collateral will be provided by the Company in accordance with clause (c) above, and participating interests in any such newly issued or Modified Facility LC shall be allocated among non-Defaulting Banks in a manner consistent with clause(c)(i) above (and Defaulting Banks shall not participate therein).
(e) If (i) a Bankruptcy Event with respect to a Parent of any Bank shall occur following the date hereof and for so long as such event shall continue or (ii) any LC Issuer has a good faith belief that any Bank has defaulted in fulfilling its obligations under one or more other agreements in which such Bank commits to extend credit, such LC Issuer shall not be required to issue, amend or increase any Facility LC, unless such LC Issuer, as the case may be, shall have entered into arrangements with the Company or such Bank, satisfactory to such LC Issuer, as the case may be, to defease any risk to it in respect of such Bank hereunder.
(f) In the event that the Agent, the Company, and each LC Issuer each agrees that a Defaulting Bank has adequately remedied all matters that caused such Bank continues to be a Defaulting Bank, then the Banks’ Pro Rata Shares of the LC Obligations shall be readjusted to reflect the inclusion of such Bank’s Commitment and on such date such Bank shall purchase at par such of the Loans of the other Banks as the Agent shall determine may be necessary in order for such Bank to hold such Loans in accordance with its Pro Rata Share of the Aggregate Commitment; provided, that if the Company cash collateralized any portion of such Defaulting Bank’s Pro Rata Share of the LC Obligations pursuant to Section 4.7(c), such cash shall be returned to the Company.
Appears in 2 contracts
Sources: Credit Agreement (Laredo Petroleum, Inc.), Credit Agreement (Laredo Petroleum, Inc.)
Defaulting Banks. (a) Notwithstanding any provision of this Agreement to the contrary, if any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(ab) Commitment Fees fees shall cease to accrue on the unfunded portion of the Available Commitment of such Defaulting Bank pursuant to Section 2.5(asubsection 2.4(a);
(bc) the Commitment and Outstanding Credit Exposure Loans of such Defaulting Bank shall not be included in determining whether all Banks, the Majority Banks or the Required Banks have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section to
subsection 10.1); provided) provided that any waiver, that, except as otherwise provided in Section 10.1, this clause (b) shall not apply to the vote of a Defaulting Bank in the case of an amendment, waiver amendment or other modification requiring the consent of such Bank all Banks or each affected Bank directly which affects such Defaulting Bank differently than other affected thereby;Banks shall require the consent of such Defaulting Bank; and
(cd) if any LC L/C Obligations exist at the time a Bank becomes a Defaulting Bank then:
(i) so long as no Default or Event of Default shall be continuing immediately before or after giving effect to such reallocation, all or any part of such LC Obligation L/C Obligations shall be reallocated among the non-Defaulting Banks in accordance with their respective Pro Rata Share Commitment Percentages but only to the extent that (x) the sum of all non-Defaulting Banks’ Outstanding Credit Exposure Loans plus non-Defaulting Banks’ L/C Obligations plus such Defaulting Bank’s Commitment Percentage of the L/C Obligations does not exceed the total of all non-Defaulting Banks’ CommitmentsCommitments and, (y) no in the case of each non-Defaulting Bank and after giving effect to such reallocation, the Loans and L/C Obligations of any such non-Defaulting Bank do not exceed such non-Defaulting Bank’s Outstanding Credit Exposure shall exceed its Commitment and (z) the conditions set forth in Section 11.2 are satisfied at such timeCommitment;
(ii) if (w) the reallocation described in subclause clause (i) above cannot, or can only partially, be effected, then upon the Company written request of any Issuing Bank, the applicable Borrower shall deposit, within one (1) five Business Day following notice Days after its receipt of such request, in a cash collateral account opened by the Administrative Agent, cash collateralize for the benefit of the relevant LC Issuer in an amount requested in such notice, such amount not to exceed such Defaulting Bank’s Pro Rata Share Commitment Percentage of the LC L/C Obligations (after giving effect at the time of such request attributable to any partial reallocation pursuant to subclause (i) above) in accordance with the procedures set forth in Section 9.2 Letters of Credit issued by such Issuing Bank for so long as the account of such LC Obligation is outstandingBorrower;
(iii) if amounts deposited pursuant to clause (ii) above at the Company request of any Issuing Bank shall be applied by the Administrative Agent to reimburse such Issuing Bank for any participations required to be funded by such Defaulting Bank;
(iv) to the extent the Borrowers cash collateralizes collateralize any portion of such Defaulting Bank’s Pro Rata Share of the LC L/C Obligations pursuant this to clause (c)ii) above, the Company Borrowers shall not be required to pay any Letter of Credit fees pursuant to Section 2.26(c) to such Defaulting Bank pursuant to Section 3.4 with respect to such Defaulting Bank’s Pro Rata Share of the LC L/C Obligations during the period such Defaulting Bank’s Pro Rata Share of the LC L/C Obligations is are cash collateralized;
(ivv) if the non-such Defaulting Banks’ Pro Rata Share of the LC Bank’s L/C Obligations is are reallocated pursuant to this clause (c)i) above, then the Letter of Credit fees payable to the Banks pursuant to Section 2.5(a) and Section 3.4 shall be adjusted in accordance with such non-Defaulting Banks’ Pro Rata Shares; orCommitment Percentages;
(v) if any Defaulting Bank’s Pro Rata Share of the LC Obligations is neither reallocated nor cash collateralized pursuant to this clause (c), then, without prejudice to any rights or remedies of any LC Issuer or any Bank hereunder, all fees that otherwise would have been payable to such Defaulting Bank (solely with respect to the portion of such Defaulting Bank’s Commitment that was utilized by such LC Obligations) and LC Fees payable under Section 3.4 with respect to such Defaulting Bank’s Pro Rata Share of the LC Obligations shall be payable to the applicable LC Issuer until such Defaulting Bank’s Pro Rata Share of the LC Obligation is cash collateralized and/or reallocated; and
(de) so long as any Bank is a Defaulting Bank, no LC Issuer Issuing Bank shall be required to issue issue, amend or Modify increase any Facility LCLetter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Banks and/or cash collateral will be provided by the Company in accordance with clause (c) aboveSection 2.23(d), and participating interests in any such newly issued or Modified Facility LC increased Letter of Credit shall be allocated among non-Defaulting Banks in a manner consistent with clause(c)(iSection 2.26(d)(i) above (and Defaulting Banks shall not participate therein).
(e) If (i) a Bankruptcy Event with respect to a Parent of any Bank shall occur following the date hereof and for so long as such event shall continue or (ii) any LC Issuer has a good faith belief that any Bank has defaulted in fulfilling its obligations under one or more other agreements in which such Bank commits to extend credit, such LC Issuer shall not be required to issue, amend or increase any Facility LC, unless such LC Issuer, as the case may be, shall have entered into arrangements with the Company or such Bank, satisfactory to such LC Issuer, as the case may be, to defease any risk to it in respect of such Bank hereunder.;
(f) any amount payable to such Defaulting Bank hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Bank pursuant to subsection 10.6 but excluding subsection 2.19) shall, in lieu of being distributed to such Defaulting Bank, 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, in the following order of priority: (i) first, to the payment of any amounts owing by such Defaulting Bank to the Administrative Agent hereunder, (ii) second, to payment of any amounts owing by such Defaulting Bank to an Issuing Bank, (iii) third, if so determined by the Administrative Agent or requested by an Issuing Bank, held in such account as cash collateral for future funding obligations of the Defaulting Bank in respect of any existing or future participating interest in any Letter of Credit, (iv) fourth, to the funding of any Loan in respect of which such Defaulting Bank has failed to fund its portion thereof as required by this Agreement and (v) fifth, if so determined by the Administrative Agent and the Company, held in such account as cash collateral for future funding obligations of the Defaulting Bank in respect of any Loans under this Agreement. The rights and remedies against a Defaulting Bank under this subsection 2.23 are in addition to other rights and remedies that the Borrowers may have against such Defaulting Bank. In the event and on the date that the Administrative Agent, the Company, Company and the Issuing Banks each LC Issuer each agrees agree that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the Banks’ Pro Rata Shares L/C Obligations of the LC Obligations Banks shall be readjusted to reflect the inclusion of such Bank’s Commitment and on such date such Bank shall purchase at par such of the Loans of the other Banks (other than Competitive Loans) as the Administrative Agent shall determine may be necessary in order for such Bank to hold such Loans in accordance with its Pro Rata Share of the Aggregate Commitment; provided, that if the Company cash collateralized any portion of Commitment Percentage and such Bank shall no longer be a Defaulting Bank’s Pro Rata Share of the LC Obligations pursuant to Section 4.7(c), such cash shall be returned to the Company.
Appears in 2 contracts
Sources: Credit Agreement (Deere & Co), Credit Agreement (Deere John Capital Corp)
Defaulting Banks. Notwithstanding anything contained in Sections 2.8, 2.9 or any other provision of this Agreement to the contrary, if any Bank becomes a Defaulting BankBank then: all Letters of Credit Outstanding and Swing Loans outstanding at such time, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Commitment Fees shall cease to accrue on the unfunded portion and all Letters of the Commitment of such Defaulting Bank pursuant to Section 2.5(a);
(b) the Commitment and Outstanding Credit Exposure of such Defaulting Bank shall not be included in determining whether the Majority Banks have taken issued or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.1); provided, that, except as otherwise provided in Section 10.1, this clause (b) shall not apply to the vote of Swing Loans made while there exists a Defaulting Bank in the case of an amendment, waiver or other modification requiring the consent of such Bank or each Bank directly affected thereby;
(c) if any LC Obligations exist at the time a Bank becomes a Defaulting Bank then:
(i) so long as no Default or Event of Default shall be continuing immediately before or after giving effect to such reallocation, all or any part of such LC Obligation shall be reallocated among the non-Defaulting Banks in accordance with their respective Pro Rata Share Ratable Shares (such Ratable Shares shall be determined without reference to each Defaulting Bank's Ratable Share) so long as no Potential Default or Event of Default exists on the date of reallocation and thereafter continues uncured, but only to the extent that (xa) the sum of all non-Defaulting Banks’ ' Revolving Credit Loans then outstanding plus the sum of such non-Defaulting Banks' Ratable Share of the Dollar Equivalent of all Swing Loans then outstanding and Letters of Credit Outstanding Credit Exposure at such time does not exceed the total of all non-Defaulting Banks’ Commitments, (y) no Bank’s Outstanding ' Revolving Credit Exposure shall exceed its Commitment Commitments and (zb) the conditions set forth aggregate obligation of each non-Defaulting Bank to acquire, refinance or fund any participations in Section 11.2 are satisfied the Defaulting Bank's portion of Letters of Credit Outstanding and Swing Loans pursuant to reallocation contemplated above shall not exceed the positive difference between (i) the Revolving Credit Commitment of such Bank minus (ii) such Bank's Revolving Credit Loans then outstanding plus such Bank's Ratable Share of the Dollar Equivalent of all Swing Loans then outstanding and Letters of Credit Outstanding at such time;
(ii) if . If the reallocation described in subclause (i) above the preceding sentence cannot, or can only partially, be effected, the Company Borrowers shall within one (1) Business Day following notice by the Administrative Agent, (1) first, prepay outstanding Swing Loans and (2) second, cash collateralize for the benefit of the relevant LC Issuer such Defaulting Bank’s Pro Rata Share 's portion of the LC Obligations Letters of Credit Outstanding (in each case, after giving effect to any partial reallocation pursuant to subclause (i) above) in accordance with the procedures set forth in Section 9.2 for so long as immediately preceding sentence). To the extent such LC Obligation is outstanding;
(iii) if the Company cash collateralizes any portion Letters of such Defaulting Bank’s Pro Rata Share of the LC Obligations pursuant this clause (c), the Company shall not be required to pay any fees to such Defaulting Bank pursuant to Section 3.4 with respect to such Defaulting Bank’s Pro Rata Share of the LC Obligations during the period such Defaulting Bank’s Pro Rata Share of the LC Obligations is cash collateralized;
(iv) if the non-Defaulting Banks’ Pro Rata Share of the LC Obligations is Credit Outstanding and Swing Loans are reallocated pursuant to this clause (c)Section 2.14, then the fees payable to the Banks pursuant to Section 2.5(a2.8.2 (but not Section 2.3) and Section 3.4 shall be adjusted in accordance with such non-Defaulting Banks’ Pro Rata ' Ratable Shares; or
(v) if any . To the extent a portion of the Defaulting Bank’s Pro Rata Share 's Letters of the LC Obligations is neither reallocated nor Credit outstanding are cash collateralized pursuant to this clause (c)2) above, the Borrowers shall not be obligated to pay any fees to or for the account of such Defaulting Bank pursuant to Section 2.8.2 with respect to such Defaulting Bank's Letter of Credit Outstandings during the period such Defaulting Bank's Letter of Credit Outstandings are cash collateralized. To the extent such Letters of Credit Outstanding are not reallocated pursuant to this Section 2.14, or the Defaulting Bank's Ratable Share of Letters of Credit Outstanding have not been cash collateralized, then, without prejudice to any rights or remedies of any LC Issuer the Issuing Bank or any Bank hereunder, all fees Commitment Fees that otherwise would have been payable to such Defaulting Bank (solely with respect to the portion of such Defaulting Bank’s 's Commitment that was utilized by such LC ObligationsLetters of Credit Outstanding) and LC Letter of Credit Fees payable under Section 3.4 with respect to such Defaulting Bank’s Pro Rata 's Ratable Share of the LC Obligations Letters of Credit Outstanding shall be payable to the applicable LC Issuer until Issuing Bank. Subject to Section 11.23, nothing contained in this Section or elsewhere in this Agreement and no reallocation of any Defaulting Bank's Ratable Share of any obligation hereunder shall relieve such Defaulting Bank’s Pro Rata Share Bank of the LC Obligation is cash collateralized and/or reallocated; and
(d) so long as its obligation to fund any Bank is a Defaulting Bank, no LC Issuer shall be required to issue or Modify any Facility LC, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Banks and/or cash collateral will be provided by the Company in accordance with clause (c) above, and participating interests in any such newly issued or Modified Facility LC shall be allocated among non-Defaulting Banks in a manner consistent with clause(c)(i) above (and Defaulting Banks shall not participate therein).
(e) If (i) a Bankruptcy Event with respect to a Parent portion of any Bank shall occur following the date hereof and for so long as amount owed by such event shall continue or (ii) any LC Issuer has a good faith belief that any Bank has defaulted in fulfilling its obligations under one or more other agreements in which such Bank commits to extend credit, such LC Issuer shall not be required to issue, amend or increase any Facility LC, unless such LC Issuer, as the case may be, shall have entered into arrangements with the Company or such Bank, satisfactory to such LC Issuer, as the case may be, to defease any risk to it in respect of such Defaulting Bank hereunder.
(f) . In the event that the Administrative Agent, the CompanyBorrower, and the Issuing Banks each LC Issuer each agrees agree that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the Banks’ Pro Rata Shares Letters of Credit Outstanding and the LC Obligations Swing Loans outstanding shall be readjusted to reflect the inclusion of such Bank’s 's Revolving Credit Commitment and on such date date, such Bank shall purchase at par such of the Loans of the other Banks as the Administrative Agent shall determine may be necessary in order for such Bank to hold such Loans in accordance with its Pro Rata Share of the Aggregate Commitment; provided, that if the Company cash collateralized any portion of such Defaulting Bank’s Pro Rata Share of the LC Obligations pursuant to Section 4.7(c), such cash shall be returned to the CompanyRatable Share.
Appears in 2 contracts
Sources: Credit Agreement (Triumph Group Inc), Credit Agreement (Triumph Group Inc)
Defaulting Banks. Notwithstanding any provision of this Agreement to the contrary, if any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Commitment Fees shall cease Notwithstanding anything to accrue on the unfunded portion contrary contained herein, the Maximum Credit Amount of the Commitment of such Defaulting Bank pursuant to Section 2.5(a);
(b) the Commitment and Outstanding Credit Exposure of such a Defaulting Bank shall not be included in determining whether all Banks or the Majority Required Banks have taken or may take any action hereunder (including approval of any redetermination of the Borrowing Base pursuant to Article 4 and any consent to any amendment or waiver pursuant to Section 10.114.2); provided, provided that, except as otherwise provided in Section 10.1any waiver, this clause (b) shall not apply to the vote of a Defaulting Bank in the case of an amendment, waiver amendment or other modification requiring the consent of all Banks or each affected Bank which affects such Defaulting Bank differently than other affected Banks shall require the consent of such Defaulting Bank; and provided further that in no event shall (i) the Commitment or Maximum Credit Amount of any Defaulting Bank be increased without the consent of such Defaulting Bank, or (ii) the Termination Date or any date fixed for any payment of principal of or interest on the Loan or any fees hereunder be postponed without the consent of such Defaulting Bank.
(b) If any Bank shall fail to make any payment referenced in clause (a) or (b) of the definition of “Defaulting Bank”, then the Administrative Agent may, in its discretion and notwithstanding any contrary provision hereof, (i) apply any amounts thereafter received by the Administrative Agent for the account of such Bank and for the benefit of the Administrative Agent or any Letter of Credit Issuer to satisfy such Bank’s obligations hereunder until all such unsatisfied obligations are fully paid, and/or (ii) hold any such amounts in a segregated account as cash collateral for, and application to, any future funding obligations of such Bank hereunder; in the case of each Bank directly affected thereby;of (i) and (ii) above, in any order as determined by the Administrative Agent in its discretion.
(c) if Borrower shall not be obligated to pay the Administrative Agent any LC Obligations exist at Defaulting Bank’s ratable share of the time a fees described in Sections 2.11, 2.12 or 2.13 (notwithstanding anything to the contrary in such sections) for the period commencing on the day such Defaulting Bank becomes a Defaulting Bank then:
(i) so long as no Default or Event of Default shall be and continuing immediately before or after giving effect to such reallocation, all or any part of such LC Obligation shall be reallocated among the non-Defaulting Banks in accordance with their respective Pro Rata Share but only to the extent that (x) the sum of all non-Defaulting Banks’ Outstanding Credit Exposure does not exceed the total of all non-Defaulting Banks’ Commitments, (y) no Bank’s Outstanding Credit Exposure shall exceed its Commitment and (z) the conditions set forth in Section 11.2 are satisfied at such time;
(ii) if the reallocation described in subclause (i) above cannot, or can only partially, be effected, the Company shall within one (1) Business Day following notice by the Agent, cash collateralize for the benefit of the relevant LC Issuer such Defaulting Bank’s Pro Rata Share of the LC Obligations (after giving effect to any partial reallocation pursuant to subclause (i) above) in accordance with the procedures set forth in Section 9.2 for so long as such LC Obligation is outstanding;
(iii) if the Company cash collateralizes any portion of such Defaulting Bank’s Pro Rata Share of the LC Obligations pursuant this clause (c), the Company shall not be required to pay any fees to such Defaulting Bank pursuant to Section 3.4 with respect to such Defaulting Bank’s Pro Rata Share of the LC Obligations during the period such Defaulting Bank’s Pro Rata Share of the LC Obligations is cash collateralized;
(iv) if the non-Defaulting Banks’ Pro Rata Share of the LC Obligations is reallocated pursuant to this clause (c), then the fees payable to the Banks pursuant to Section 2.5(a) and Section 3.4 shall be adjusted in accordance with such non-Defaulting Banks’ Pro Rata Shares; or
(v) if any Defaulting Bank’s Pro Rata Share of the LC Obligations is neither reallocated nor cash collateralized pursuant to this clause (c), then, without prejudice to any rights or remedies of any LC Issuer or any Bank hereunder, all fees that otherwise would have been payable to such Defaulting Bank (solely with respect to the portion of such Defaulting Bank’s Commitment that was utilized by such LC Obligations) and LC Fees payable under Section 3.4 with respect to such Defaulting Bank’s Pro Rata Share of the LC Obligations shall be payable to the applicable LC Issuer until such Defaulting Bank’s Pro Rata Share of the LC Obligation is cash collateralized and/or reallocated; and
(d) so long as any Bank is a Defaulting Bank, no LC Issuer shall be required to issue or Modify any Facility LC, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Banks and/or cash collateral will be provided by the Company in accordance with clause (c) above, and participating interests in any such newly issued or Modified Facility LC shall be allocated among non-Defaulting Banks in a manner consistent with clause(c)(i) above (and Defaulting Banks shall not participate therein).
(e) If (i) a Bankruptcy Event with respect to a Parent of any Bank shall occur following the date hereof and for so long as such event shall continue or (ii) any LC Issuer has a good faith belief that any Bank has defaulted in fulfilling its obligations under one or more other agreements in which such Bank commits to extend credit, such LC Issuer shall not be required to issue, amend or increase any Facility LC, unless such LC Issuer, as the case may be, shall have entered into arrangements with the Company or such Bank, satisfactory to such LC Issuer, as the case may be, to defease any risk to it in respect of such Bank hereunder.
(f) In the event that the Agent, the Company, and each LC Issuer each agrees that a Defaulting Bank has adequately remedied all matters that caused such Bank continues to be a Defaulting Bank, then the Banks’ Pro Rata Shares of the LC Obligations shall be readjusted to reflect the inclusion of such Bank’s Commitment and on such date such Bank shall purchase at par such of the Loans of the other Banks as the Agent shall determine may be necessary in order for such Bank to hold such Loans in accordance with its Pro Rata Share of the Aggregate Commitment; provided, that if the Company cash collateralized any portion of such Defaulting Bank’s Pro Rata Share of the LC Obligations pursuant to Section 4.7(c), such cash shall be returned to the Company.
Appears in 2 contracts
Sources: Credit Agreement (Laredo Petroleum - Dallas, Inc.), Credit Agreement (Laredo Petroleum Holdings, Inc.)
Defaulting Banks. Notwithstanding any provision of this Agreement to the contrary, if any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Commitment Fees shall cease to accrue on the unfunded portion If any Fronted Letters of the Commitment of such Defaulting Bank pursuant to Section 2.5(a);
(b) the Commitment and Outstanding Credit Exposure of such Defaulting Bank shall not be included in determining whether the Majority Banks have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.1); provided, that, except as otherwise provided in Section 10.1, this clause (b) shall not apply to the vote of a Defaulting Bank in the case of an amendment, waiver or other modification requiring the consent of such Bank or each Bank directly affected thereby;
(c) if any LC Obligations exist are outstanding at the time a Bank becomes a Defaulting Bank Bank, and the Commitments have not been terminated in accordance with Section 8.01, then:
(i) so long as no Default or Event of Default shall be continuing immediately before or after giving effect to such reallocationhas occurred and is continuing, all or any part of such LC Obligation the participations in outstanding Fronted Letters of Credit shall be reallocated among the nonBanks that are Non-Defaulting Banks in accordance with their respective Pro Rata Share Applicable Percentages (disregarding any Defaulting Bank’s Commitment) but only to the extent that (x) the sum of (A) the aggregate principal amount of all nonAdvances made by the Non-Defaulting Banks (in their capacity as Banks) and outstanding at such time, plus (B) the Non-Defaulting Banks’ Outstanding Credit Exposure aggregate LC Exposures, plus (C) such Defaulting Bank’s LC Exposure, does not exceed the total of all nonNon-Defaulting Banks’ Commitments, (y) no Bank’s Outstanding Credit Exposure shall exceed its Commitment and (z) the conditions set forth in Section 11.2 are satisfied at such time;
(ii) if the reallocation described in subclause clause (i) above cannot, or can only partially, be effected, the Company shall within one (1) Business Day following notice by the Agentany Issuing Bank, cash collateralize for the benefit of the relevant LC Issuer such Defaulting Bank’s Pro Rata Share of the LC Obligations Exposure (after giving effect to any partial reallocation pursuant to subclause clause (i) above) by paying cash collateral to such Issuing Bank; provided that, so long as no Default is continuing, such cash collateral shall be released promptly upon the earliest of (A) the reallocation of the LC Exposure of the Defaulting Bank to Non-Defaulting Banks in accordance with clause (i) above, (B) a reduction in the procedures set forth outstanding amount available to be drawn under all outstanding Fronted Letters of Credit to zero, (C) the termination of the Defaulting Bank status of the applicable Bank, (D) such Issuing Bank’s good faith determination that there exists excess cash collateral (in which case, an amount equal to such excess cash collateral shall be released) or (E) the posting of cash collateral for the amount of a Defaulting Bank as contemplated by Section 9.2 for so long as 2.07(g). In the event any Fronted Letter of Credit or a portion thereof is collateralized, no fees shall be payable by the Company on the collateralized amount of such LC Obligation is outstandingFronted Letter of Credit or a portion thereof;
(iii) if to the Company cash collateralizes any portion extent the Applicable Percentages of such Defaulting Bank’s Pro Rata Share Fronted Letters of Credit of the LC Obligations pursuant this clause (c), the Company shall not be required to pay any fees to such Defaulting Bank pursuant to Section 3.4 with respect to such Defaulting Bank’s Pro Rata Share of the LC Obligations during the period such Defaulting Bank’s Pro Rata Share of the LC Obligations is cash collateralized;
(iv) if the nonNon-Defaulting Banks’ Pro Rata Share of the LC Obligations is Banks are reallocated pursuant to this clause (cSection 2.07(a), then the fees payable to the Banks pursuant to Section 2.5(a4.01(b)(i) and Section 3.4 shall be adjusted in accordance with such nonthe Non-Defaulting Banks’ Pro Rata SharesApplicable Percentages of Fronted Letters of Credit as reallocated; or
(viv) if to the extent any Defaulting Bank’s Pro Rata Share Applicable Percentage of the LC Obligations Fronted Letters of Credit is neither reallocated nor cash collateralized nor reallocated pursuant to this clause (cSection 2.07(a), then, without prejudice to any rights or remedies of any LC Issuer Issuing Bank or any Bank hereunder, all letter of credit fees that otherwise would have been payable to such Defaulting Bank (solely with respect to the portion of such Defaulting Bank’s Commitment that was utilized by such LC Obligations) and LC Fees payable under Section 3.4 4.01(b)(i) with respect to such Defaulting Bank’s Pro Rata Share Applicable Percentage of the LC Obligations Fronted Letters of Credit that has not been reallocated or collateralized shall be payable to the applicable LC Issuer Issuing Bank until such Defaulting Bank’s Pro Rata Share Applicable Percentage of the LC Obligation is Fronted Letters of Credit has been fully cash collateralized and/or reallocated; and.
(db) so So long as any Bank is a Defaulting Bank, no LC Issuer Issuing Bank shall be required to issue issue, amend or Modify increase any Facility LCFronted Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the nonNon-Defaulting Banks and/or cash collateral will be provided by the Company in accordance with clause (cSection 2.07(a) aboveor provided in accordance with Section 2.07(g), and participating interests in any such newly issued issued, amended or Modified Facility LC increased Fronted Letter of Credit shall be allocated among nonNon-Defaulting Banks in a manner consistent with clause(c)(iSection 2.07(a)(i) above (and Defaulting Banks shall not participate therein).
(ec) If (i) a Bankruptcy Event with respect to a Parent No Commitment of any Bank shall occur following be increased or otherwise affected, and, except as otherwise expressly provided in this Section 2.07, performance by the date hereof Company of its obligations shall not be excused or otherwise modified as a result of the operation of this Section 2.07. The rights and remedies against a Defaulting Bank under this Section 2.07 are in addition to any other rights and remedies which the Company, the Administrative Agent, any Bank or any Issuing Bank may have against such Defaulting Bank.
(d) When a Defaulting Bank shall exist (i) any Multi-Bank Letter of Credit shall be issued by the Non-Defaulting Banks in accordance with their respective Applicable Percentages (disregarding any Defaulting Bank’s Commitment) but only to the extent that the sum of (A) the aggregate principal amount of all Advances made by the Non-Defaulting Banks (in their capacity as Banks) and outstanding at such time, plus (B) the Non-Defaulting Banks’ aggregate LC Exposures, plus (C) the amount of such Defaulting Bank’s LC Exposure if such Defaulting Bank had been included in such Multi-Bank Letter of Credit without regard for this Section 2.07(d), does not exceed the total of all Non-Defaulting Banks’ Commitments; and (ii) to the extent that the Non-Defaulting Banks shall issue any Multi-Bank Letter of Credit pursuant to this Section 2.07(d), then the fees payable to the Banks pursuant to Section 4.01(b)(i) shall be adjusted in accordance with the Non-Defaulting Banks’ Applicable Percentages (disregarding any Defaulting Bank’s Commitment).
(e) If any Multi-Bank Letter of Credit is outstanding at the time a Bank becomes a Defaulting Bank, and the Commitments have not been terminated in accordance with Section 8.01, then (i) so long as the conditions set forth in Section 5.02 are then satisfied, the Administrative Agent shall issue a Replacement Letter of Credit for such event shall continue or Multi-Bank Letter of Credit which excludes the Defaulting Banks as issuers thereunder but only to the extent that the sum of (A) the aggregate principal amount of all Advances made by the Non-Defaulting Banks (in their capacity as Banks) and outstanding at such time, plus (B) the Non-Defaulting Banks’ aggregate LC Exposures, plus (C) the amount of such Defaulting Bank’s LC Exposure if such Defaulting Bank had been included in such Multi-Bank Letter of Credit without regard for this Section 2.07(e), does not exceed the total of all Non-Defaulting Banks’ Commitments; and (ii) to the extent that the Non-Defaulting Banks shall issue any LC Issuer has a good faith belief that any Multi-Bank has defaulted Letter of Credit pursuant to this Section 2.07(e), then the fees payable to the Banks pursuant to Section 4.01(b)(i) shall be adjusted in fulfilling its obligations under one or more other agreements in which such Bank commits to extend credit, such LC Issuer shall not be required to issue, amend or increase any Facility LC, unless such LC Issuer, as the case may be, shall have entered into arrangements accordance with the Company or such Non-Defaulting Banks’ Applicable Percentages (disregarding any Defaulting Bank, satisfactory to such LC Issuer, as the case may be, to defease any risk to it in respect of such Bank hereunder’s Commitment).
(f) In the event that the Agent, If the Company, the Administrative Agent and each LC Issuer each agrees Issuing Bank agree in writing in their reasonable determination that a Defaulting Bank has adequately remedied all matters that caused such Bank should no longer be deemed to be a Defaulting Bank, then the Banks’ Pro Rata Shares Administrative Agent will so notify the parties hereto, whereupon as of the LC Obligations shall be readjusted effective date specified in such notice and subject to reflect any conditions set forth therein (which may include arrangements with respect to any cash collateral), that Bank will, to the inclusion extent applicable, purchase that portion of such Bank’s Commitment and on such date such Bank shall purchase at par such of the Loans outstanding Advances of the other Banks or take such other actions as the Administrative Agent shall may determine may to be necessary to cause the Advances, obligations under Multi-Bank Letters of Credit outstanding and funded and unfunded participations in order for such Bank Fronted Letters of Credit to hold such Loans be held on a pro rata basis by the Banks in accordance with its Pro Rata Share their Applicable Percentages (without giving effect to Section 2.07(a)), whereupon such Bank will cease to be a Defaulting Bank; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Aggregate CommitmentCompany while that Bank was a Defaulting Bank; and provided, further, that if except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Bank to Non-Defaulting Bank will constitute a waiver or release of any claim of any party hereunder arising from such Bank’s having been a Defaulting Bank.
(g) Notwithstanding anything to the contrary contained in this Agreement, any payment of principal, interest, commitment fees, Fronted Letter of Credit commissions or other amounts received by the Administrative Agent for the account of any Defaulting Bank under this Agreement (whether voluntary or mandatory, at maturity, pursuant to Article VIII 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 Bank to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Bank to any Issuing Bank hereunder; third, as the Company may request (so long as no Default exists), to the funding of any Advance in respect of which that Defaulting Bank has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fourth, as the Company may request, to be held in a cash collateralized collateral account to cash collateralize such Defaulting Bank’s participations in Fronted Letters of Credit that are then outstanding; fifth, if so determined by the Administrative Agent and the Company, to be held in a cash collateral account and released in order to satisfy obligations of such Defaulting Bank to fund Advances under this Agreement; sixth, if so determined by the Administrative Agent and the Company, to be held in a cash collateral account to cash collateralize such Defaulting Bank’s participations in Fronted Letters of Credit, seventh, to the payment of any portion amounts owing to the Banks or the Issuing Banks as a result of any judgment of a court of competent jurisdiction obtained by any Bank or Issuing Bank against such Defaulting Bank as a result of such Defaulting Bank’s Pro Rata Share breach of its obligations under this Agreement; eighth, 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 Bank as a result of such Defaulting Bank’s breach of its obligations under this Agreement; and ninth, to such Defaulting Bank or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the LC Obligations pursuant to Section 4.7(c)principal amount of any Advance in respect of which such Defaulting Bank has not fully funded its appropriate share, and (y) such Advances were made or the related Fronted Letters of Credit were issued at a time when the applicable conditions set forth in Article V were satisfied or waived, such payment shall be applied solely to pay the Advances of all Non-Defaulting Banks on a pro rata basis prior to being applied to the payment of any Advances of such Defaulting Bank and provided further that any amounts held as cash collateral for funding obligations of a Defaulting Bank shall be returned to such Defaulting Bank upon the Companytermination of this Agreement and the satisfaction of such Defaulting Bank’s obligations hereunder. Any payments, prepayments or other amounts paid or payable to a Defaulting Bank that are applied (or held) to pay amounts owed by a Defaulting Bank or to post cash collateral pursuant to this Section 2.07 shall be deemed paid to and redirected by such Defaulting Bank, and each Bank irrevocably consents hereto.
(h) The Commitment, Revolving Credit Exposure and LC Exposure of any Defaulting Bank shall not be included in determining whether the Majority Banks or any other requisite Banks have taken or may take any action hereunder or under any Note (including any consent to any amendment, waiver or other modification pursuant to Section 10.01); provided that any amendment, waiver or other modification requiring the consent of all Banks or all Banks affected thereby shall, except as otherwise provided in Section 10.01, require the consent of such Defaulting Bank in accordance with the terms hereof.
Appears in 2 contracts
Sources: Revolving Credit and Letter of Credit Agreement (Cigna Corp), Revolving Credit and Letter of Credit Agreement (Cigna Corp)
Defaulting Banks. Notwithstanding any provision of this Agreement to the contrary, if (a) If any Bank becomes with a Revolving Credit Commitment becomes, and during the period it remains, a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Commitment Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Bank pursuant to Section 2.5(a);
(b) the Commitment and Outstanding Credit Exposure of such Defaulting Bank shall not be included in determining whether the Majority Banks have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.1); providedapply, that, except as otherwise provided in Section 10.1, this clause (b) shall not apply notwithstanding anything to the vote of a Defaulting Bank contrary in the case of an amendment, waiver or other modification requiring the consent of such Bank or each Bank directly affected thereby;
(c) if any LC Obligations exist at the time a Bank becomes a Defaulting Bank thenthis Agreement:
(i) so long as no Default or Event of Default shall be continuing immediately before or after giving effect to such reallocation, all or any part of such LC Obligation shall Defaulting Bank’s participation in Letter of Credit Outstandings and Swing Loans will, subject to the limitation in the proviso below, automatically be reallocated (effective no later than one (1) Business Day after the Administrative Agent has actual knowledge that such Bank has become a Defaulting Bank) among the nonNon-Defaulting Banks pro rata in accordance with their respective Pro Rata Share but only Revolver Percentages (calculated as if the Defaulting Bank’s Revolving Credit Commitment was reduced to zero and each Non-Defaulting Bank’s Revolving Credit Commitment had been increased proportionately); provided that the sum of each Non-Defaulting Bank’s total Revolving Credit Exposure may not in any event exceed the Revolving Credit Commitment of such Non-Defaulting Bank as in effect at the time of such reallocation; and
(ii) to the extent that any portion (xthe “unreallocated portion”) of such Defaulting Bank’s participation in Letter of Credit Outstandings and Swing Loans cannot be reallocated pursuant to clause (i) above for any reason, the sum Borrower will, not later than two (2) Business Days after demand by the Administrative Agent (at the direction of all non-Defaulting Banks’ Outstanding any Letter of Credit Exposure does not exceed Issuer and/or the total of all non-Defaulting Banks’ CommitmentsSwing Lender), (y) no Cash Collateralize the obligations of the Borrower to such Letter of Credit Issuer or the Swing Lender in respect of such exposure, as the case may be, in an amount at least equal to the aggregate amount of the unreallocated portion of such Defaulting Bank’s Outstanding participation in Letter of Credit Exposure shall exceed its Commitment Outstandings and Swing Loans or (z) make other arrangements satisfactory to the Administrative Agent, the Letter of Credit Issuer and the Swing Lender in their sole discretion to protect them against the risk of non-payment by such Defaulting Bank; provided that, subject to Section 10.17, neither any such reallocation nor any payment by a Non-Defaulting Bank pursuant thereto nor any such Cash Collateralization or reduction will constitute a waiver or release of any claim the Borrower, the Administrative Agent, a Letter of Credit Issuer, the Swing Lender or any other Bank may have against such Defaulting Bank or cause such Defaulting Bank to be a Non-Defaulting Bank.
(b) Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of a Defaulting Bank (whether voluntary or mandatory, at maturity, pursuant to Article 6 or otherwise) or received by the Administrative Agent from a Defaulting Bank pursuant to Section 10.4 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 Bank to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Bank to the Letter of Credit Issuer or the Swing Lender hereunder; third, to Cash Collateralize the unreallocated portion of such Defaulting Bank’s participation in Letter of Credit Outstandings and Swing Loans in accordance with Section 2.17(a)(ii); fourth, as the Borrower may request (so long as no Default or Event of Default exists), to the funding of any Loan or funded participation in respect of which such Defaulting Bank 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 deposit account and released pro rata in order to (A) satisfy such Defaulting Bank’s potential future funding obligations with respect to Loans and funded participations under this Agreement and (B) Cash Collateralize future unreallocated portions of such Defaulting Bank’s participation in Letter of Credit Outstandings and Swing Loans with respect to future Letters of Credit and Swing Loans issued under this Agreement in accordance with Section 2.17(a)(ii); sixth, to the payment of any amounts owing to the Banks, the Letter of Credit Issuer or the Swing Lender as a result of any judgment of a court of competent jurisdiction obtained by any Bank, such Letter of Credit Issuer or the Swing Lender against such Defaulting Bank as a result of such Defaulting Bank’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 Bank as a result of such Defaulting Bank’s breach of its obligations under this Agreement; and eighth, to such Defaulting Bank or as otherwise directed by a court of competent jurisdiction; provided that if (1) such payment is a payment of the principal amount of any Loans or funded participations in Letters of Credit or Swing Loans in respect of which such Defaulting Bank has not fully funded its appropriate share, and (2) such Loans were made or the related Letters of Credit or Swing Loans were issued at a time when the conditions set forth in Section 11.2 are 3.3 were satisfied at or waived, such time;
(ii) if payment shall be applied solely to pay the reallocation described Loans of, and funded participations in subclause (i) above cannotLetters of Credit or Swing Loans owed to, all Non-Defaulting Banks on a pro rata basis prior to being applied to the payment of any Loans of, or can only partiallyfunded participations in Letters of Credit or Swing Loans owed to, be effected, the Company shall within one (1) Business Day following notice such Defaulting Bank until such time as all Loans and funded and unfunded participations in Letter of Credit Outstandings and Swing Loans are held by the Agent, cash collateralize for the benefit of the relevant LC Issuer such Defaulting Bank’s Pro Rata Share of the LC Obligations (after giving effect to any partial reallocation pursuant to subclause (i) above) Banks pro rata in accordance with the procedures set forth in Revolving Credit Commitments under the applicable Revolving Credit without giving effect to Section 9.2 for so long as such LC Obligation is outstanding;
2.17(a)(i). Any payments, prepayments or other amounts paid or payable to a Defaulting Bank that are applied (iiior held) if the Company cash collateralizes any portion of to pay amounts owed by a Defaulting Bank or to post Cash Collateral pursuant to this Section 2.17(b) shall be deemed paid to and redirected by such Defaulting Bank’s Pro Rata Share , and each Bank irrevocably consents hereto.
(c) If the Borrower, the Administrative Agent, the Letter of Credit Issuers and the Swing Lender agree in writing in their discretion that any Defaulting Bank has ceased to be a Defaulting Bank, the Administrative Agent will so notify the parties hereto, whereupon as of the LC Obligations pursuant this clause (ceffective date specified in such notice, and subject to any conditions set forth therein, that Bank will, to the extent applicable, purchase at par that portion of outstanding Loans of the other Banks or take such other actions as the Administrative Agent may determine to be necessary to cause the Loans and funded and unfunded participations in Letters of Credit and Swing Loans to be held pro rata by the Banks in accordance with their Percentage under the applicable Credit without giving effect to Section 2.17(a), the Company shall not whereupon such Bank will cease to be required to pay any fees to such a Defaulting Bank pursuant to Section 3.4 Bank; provided that no adjustments will be made retroactively with respect to such fees accrued or payments made by or on behalf of the Borrower while that Bank was a Defaulting Bank; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Bank to Non-Defaulting Bank will constitute a waiver or release of any claim of any party hereunder arising from that Bank’s Pro Rata Share of the LC Obligations during the period such having been a Defaulting Bank’s Pro Rata Share of the LC Obligations is cash collateralized;
(iv) if the non-Defaulting Banks’ Pro Rata Share of the LC Obligations is reallocated pursuant to this clause (c), then the fees payable to the Banks pursuant to Section 2.5(a) and Section 3.4 shall be adjusted in accordance with such non-Defaulting Banks’ Pro Rata Shares; or
(v) if any Defaulting Bank’s Pro Rata Share of the LC Obligations is neither reallocated nor cash collateralized pursuant to this clause (c), then, without prejudice to any rights or remedies of any LC Issuer or any Bank hereunder, all fees that otherwise would have been payable to such Defaulting Bank (solely with respect to the portion of such Defaulting Bank’s Commitment that was utilized by such LC Obligations) and LC Fees payable under Section 3.4 with respect to such Defaulting Bank’s Pro Rata Share of the LC Obligations shall be payable to the applicable LC Issuer until such Defaulting Bank’s Pro Rata Share of the LC Obligation is cash collateralized and/or reallocated; and.
(d) so So long as any Bank is a Defaulting Bank, no LC Letter of Credit Issuer shall will be required to issue issue, amend, extend, renew or Modify increase any Facility LC, Letter of Credit unless it is reasonably satisfied that the related exposure will be 100% covered by Borrower has complied with the Commitments requirements of the non-Defaulting Banks and/or cash collateral will be provided by the Company in accordance with clause (c) above, and participating interests in any such newly issued or Modified Facility LC shall be allocated among non-Defaulting Banks in a manner consistent with clause(c)(i) above (and Defaulting Banks shall not participate thereinSection 2A.1(a)(iii).
(e) If No Defaulting Bank shall be entitled to receive any commitment fee pursuant to Section 2.7(a) or (if) or Letter of Credit Fee for any period during which that Bank is a Bankruptcy Event Defaulting Bank. With respect to any commitment fee pursuant to Section 2.7(a) or Letter of Credit Fee not required to be paid to any Defaulting Bank pursuant to this clause (e), the Borrower shall (x) pay to each Non-Defaulting Bank that portion of any such fee otherwise payable to such Defaulting Bank with respect to a Parent such Defaulting Bank’s participation in Letters of Credit or Swing Loans that has been reallocated to such Non-Defaulting Bank pursuant to Section 2.17(a)(i), (y) pay to each Letter of Credit Issuer and Swing Lender, as applicable, the amount of any such fee otherwise payable to such Defaulting Bank shall occur following to the date hereof extent allocable to such Letter of Credit Issuer or Swing Lender’s Fronting Exposure to such Defaulting Bank, and for so long as such event shall continue or (iiz) any LC Issuer has a good faith belief that any Bank has defaulted in fulfilling its obligations under one or more other agreements in which such Bank commits to extend credit, such LC Issuer shall not be required to issue, amend or increase pay the remaining amount of any Facility LC, unless such LC Issuer, as the case may be, shall have entered into arrangements with the Company or such Bank, satisfactory to such LC Issuer, as the case may be, to defease any risk to it in respect of such Bank hereunderfee.
(f) In the event that the Agent, the Company, and each LC Issuer each agrees that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the Banks’ Pro Rata Shares of the LC Obligations shall be readjusted to reflect the inclusion of such Bank’s Commitment and on such date such Bank shall purchase at par such of the Loans of the other Banks as the Agent shall determine may be necessary in order for such Bank to hold such Loans in accordance with its Pro Rata Share of the Aggregate Commitment; provided, that if the Company cash collateralized any portion of such Defaulting Bank’s Pro Rata Share of the LC Obligations pursuant to Section 4.7(c), such cash shall be returned to the Company.
Appears in 2 contracts
Sources: Credit Agreement (Bread Financial Holdings, Inc.), Credit Agreement (Bread Financial Holdings, Inc.)
Defaulting Banks. Notwithstanding any provision of this Agreement or any other Loan Document to the contrary, if any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Commitment Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Bank pursuant to Section 2.5(a3.2(a);
(b) the Commitment and Outstanding Extensions of Credit Exposure of such Defaulting Bank shall not be included in determining whether all Banks (or each Bank) or the Majority Banks have taken or may take any action hereunder (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 10.1); provided, that, except as otherwise provided in Section 10.1, that this clause (b) shall not apply to the vote of a Defaulting Bank in the case of an amendment, waiver or other modification requiring the consent of such Bank or each Bank directly affected thereby if such Bank is an affected Bank; provided, further, that there shall not be any amendment, modification or waiver (i) of any provision of Section 4.2 or Section 10.1 in a manner that would alter the pro rata sharing of payments required thereby, or (ii) causing the reduction of the percentage specified in the definition of Majority Banks, or (iii) causing the consent to the assignment or transfer by the Borrower of any of its respective rights and obligations under this Agreement and the other Loan Documents, in each case without the consent of such Bank;
(c) if any LC Swingline Exposure or L/C Obligations exist at the time a such Bank becomes a Defaulting Bank then:;
(i) so long as no Default or Event of Default shall be continuing immediately before or after giving effect to such reallocation, all or any part of the Swingline Exposure and L/C Exposure of such LC Obligation Defaulting Bank shall be reallocated (effective as of the date such Bank becomes a Defaulting Bank) among the non-Defaulting Banks in accordance with their respective Pro Rata Share Revolving Percentages, but only to the extent that (x) the sum of all non-Defaulting Banks’ Outstanding Extensions of Credit plus such Defaulting Bank’s Swingline Exposure and L/C Exposure does not exceed the total of all non-Defaulting Banks’ Commitments, (y) no Bank’s Outstanding Credit Exposure shall exceed its Commitment and (z) the conditions set forth in Section 11.2 are satisfied at such time;
(ii) if the reallocation described in subclause clause (i) above cannot, or can only partially, be effected, the Company shall Borrower shall, within one (1) two Business Day Days following the Borrower’s receipt of written notice by the Administrative Agent, (x) first, prepay such Defaulting Bank’s Swingline Exposure and (y) second, cash collateralize for the benefit of the relevant LC Issuer applicable Issuing Banks only the Borrower’s obligations corresponding to such Defaulting Bank’s Pro Rata Share of the LC Obligations L/C Exposure (after giving effect to any partial reallocation pursuant to subclause clause (i) above) in accordance with the procedures set forth in Section 9.2 8.2 for so long as such LC Obligation L/C Exposure is outstanding;
(iii) if the Company Borrower cash collateralizes any portion of such Defaulting Bank’s Pro Rata Share of the LC Obligations L/C Exposure pursuant this to clause (c)ii) above, the Company Borrower shall not be required to pay any fees to such Defaulting Bank pursuant to Section 3.4 2.5(c) with respect to such Defaulting Bank’s Pro Rata Share of the LC Obligations L/C Exposure during the period such Defaulting Bank’s Pro Rata Share of the LC Obligations L/C Exposure is cash collateralized;
(iv) if all or any portion of such Defaulting Bank’s L/C Exposure is reallocated pursuant to clause (i) above, then the Letter of Credit participation fees that otherwise would have been payable to such Defaulting Bank pursuant to Section 2.5(c)(i) with respect to such Defaulting Bank’s reallocated L/C Exposure shall be payable to the non-Defaulting Banks’ Pro Rata Share of the LC Obligations is reallocated pursuant to this clause (c), then the fees payable to the Banks pursuant to Section 2.5(a) and Section 3.4 shall be adjusted in accordance with such non-Defaulting Banks’ Pro Rata SharesRevolving Percentages after giving effect to such reallocation; orand
(v) if all or any portion of such Defaulting Bank’s Pro Rata Share of the LC Obligations L/C Exposure is neither reallocated nor cash collateralized pursuant to this clause (c)i) or (ii) above, then, without prejudice to any rights or remedies of any LC Issuer Issuing Bank or any other Bank hereunder, all Letter of Credit participation fees that otherwise would have been payable to such Defaulting Bank (solely with respect to the portion of such Defaulting Bank’s Commitment that was utilized by such LC Obligations) and LC Fees payable under Section 3.4 2.5(c)(i) with respect to such Defaulting Bank’s Pro Rata Share of the LC Obligations unreallocated L/C Exposure shall be payable to the applicable LC Issuer Issuing Banks, ratably based on the portion of such L/C Exposure attributable to Letters of Credit issued by each Issuing Bank, until and to the extent that such Defaulting Bank’s Pro Rata Share of the LC Obligation L/C Exposure is reallocated and/or cash collateralized and/or reallocated; andpursuant to clause (i) or (ii) above;
(d) so long as any such Bank is a Defaulting Bank, the Swingline Lender shall not be required to fund any Swingline Loan and no LC Issuer Issuing Bank shall be required to issue issue, amend or Modify increase any Facility LCLetter of Credit, unless it the Swingline Lender is satisfied that the related exposure in respect of Swingline Loans, and the Issuing Banks are satisfied that the Defaulting Bank’s then outstanding L/C Exposure, will be 100% covered by the Commitments of the non-Defaulting Banks and/or and, to the extent such 100% coverage is not achieved, by cash collateral which will be provided by the Company Borrower in accordance with clause (c) aboveSection 2.8(c), and participating interests in any such newly made Swingline Loan or any newly issued or Modified Facility LC increased Letter of Credit shall be allocated among non-Defaulting Banks in a manner consistent with clause(c)(iSection 2.8(c)(i) above (and such Defaulting Banks Bank shall not participate therein).
(e) . If (i) a Bankruptcy Event or a Bail-In Action with respect to a Parent of any Bank shall occur following the date hereof and for so long as such event shall continue or (ii) any LC Issuer the Swingline Lender or the Issuing Bank has a good faith belief that any Bank has defaulted in fulfilling its obligations under one or more other agreements in which to extend credit generally (such Bank commits referenced in clauses (i) and (ii), a “Disregarded Bank”), the Swingline Lender shall not be required to extend credit, such LC Issuer fund any Swingline Loan and the Issuing Bank shall not be required to issue, amend or increase any Facility LCLetter of Credit, unless such LC Issuer, as the case may be, shall have entered into arrangements with Swingline Lender is satisfied that the Company or such Bank, satisfactory to such LC Issuer, as the case may be, to defease any risk to it related exposure in respect of Swingline Loans, and the Issuing Banks are satisfied that the Disregarded Bank’s then outstanding L/C Exposure, will be 100% covered by the Commitments of the non-Disregarded Banks and, to the extent such 100% coverage is not achieved, by cash collateral which will be provided by the Borrower in the manner consistent with Section 2.8(c), and participating interests in any newly made Swingline Loan or any newly issued or increased Letter of Credit shall be allocated among the non-Disregarded Banks in a manner consistent with Section 2.8(c) (and such Disregarded Bank hereunder.
(f) shall not participate therein). In the event that the Administrative Agent, the CompanyBorrower, the Swingline Lender and each LC Issuer the Issuing Banks each agrees that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the Banks’ Pro Rata Shares Swingline Exposures and L/C Exposures of the LC Obligations Banks shall be readjusted to reflect the inclusion of such Bank’s Commitment Commitment, and on such date such Bank shall purchase at par such of the Revolving Loans of the other Banks as the Administrative Agent shall determine may be necessary in order for such Bank to hold such Revolving Loans in accordance with its Pro Rata Share of Revolving Percentage. The rights and remedies against, and with respect to, a Defaulting Bank under this Section 2.8 are in addition to, and cumulative and not in limitation of, all other rights and remedies that the Aggregate Commitment; providedAdministrative Agent and each Lender, that if each Issuing Bank, the Company cash collateralized Swingline Lender or the Borrower may at any portion of time have against, or with respect to, such Defaulting Bank’s Pro Rata Share of the LC Obligations pursuant to Section 4.7(c), such cash shall be returned to the Company.
Appears in 2 contracts
Sources: Credit Agreement (Centerpoint Energy Houston Electric LLC), Credit Agreement (Centerpoint Energy Houston Electric LLC)
Defaulting Banks. Notwithstanding any provision of this Agreement to the contrary, if any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Commitment Fees shall cease Notwithstanding anything to accrue on the unfunded portion contrary contained herein, the Maximum Credit Amount of the Commitment of such Defaulting Bank pursuant to Section 2.5(a);
(b) the Commitment and Outstanding Credit Exposure of such a Defaulting Bank shall not be included in determining whether all Banks, the Majority Banks, the Required Banks or the Super Majority Banks have taken or may take any action hereunder (including approval of any redetermination of the Borrowing Base pursuant to Article IV and any consent to any amendment or waiver pursuant to Section 10.114.2); provided, provided that, except as otherwise provided in Section 10.1any waiver, this clause (b) shall not apply to the vote of a Defaulting Bank in the case of an amendment, waiver amendment or other modification requiring the consent of all Banks or each affected Bank which affects such Defaulting Bank differently than other affected Banks shall require the consent of such Defaulting Bank; and provided further that in no event shall (i) the Commitment, Elected Commitment or Maximum Credit Amount of any Defaulting Bank be increased without the consent of such Defaulting Bank, or (ii) the Termination Date or any date fixed for any payment of interest on the Loans or any fees hereunder be postponed without the consent of such Defaulting Bank.
(b) If any Bank shall fail to make any payment referenced in clause (a) of the definition of “Defaulting Bank”, then Administrative Agent may, in its discretion and notwithstanding any contrary provision hereof, (i) apply any amounts thereafter received by Administrative Agent for the account of such Bank and for the benefit of Administrative Agent or the Letter of Credit Issuer to satisfy such Bank’s obligations hereunder until all such unsatisfied obligations are fully paid, and/or (ii) hold any such amounts in a segregated account as cash collateral for, and application to, any future funding obligations of such Bank hereunder; in the case of each Bank directly affected thereby;of (i) and (ii) above, in any order as determined by Administrative Agent in its discretion.
(c) if Borrower shall not be obligated to pay any LC Obligations exist at Defaulting Bank's ratable share of the time a fees described in Section 2.11, Section 2.12 or Section 2.13 (notwithstanding anything to the contrary in such sections) for the period commencing on the day such Defaulting Bank becomes a Defaulting Bank then:
(i) so long as no Default or Event of Default shall be and continuing immediately before or after giving effect to such reallocation, all or any part of such LC Obligation shall be reallocated among the non-Defaulting Banks in accordance with their respective Pro Rata Share but only to the extent that (x) the sum of all non-Defaulting Banks’ Outstanding Credit Exposure does not exceed the total of all non-Defaulting Banks’ Commitments, (y) no Bank’s Outstanding Credit Exposure shall exceed its Commitment and (z) the conditions set forth in Section 11.2 are satisfied at such time;
(ii) if the reallocation described in subclause (i) above cannot, or can only partially, be effected, the Company shall within one (1) Business Day following notice by the Agent, cash collateralize for the benefit of the relevant LC Issuer such Defaulting Bank’s Pro Rata Share of the LC Obligations (after giving effect to any partial reallocation pursuant to subclause (i) above) in accordance with the procedures set forth in Section 9.2 for so long as such LC Obligation is outstanding;
(iii) if the Company cash collateralizes any portion of such Defaulting Bank’s Pro Rata Share of the LC Obligations pursuant this clause (c), the Company shall not be required to pay any fees to such Defaulting Bank pursuant to Section 3.4 with respect to such Defaulting Bank’s Pro Rata Share of the LC Obligations during the period such Defaulting Bank’s Pro Rata Share of the LC Obligations is cash collateralized;
(iv) if the non-Defaulting Banks’ Pro Rata Share of the LC Obligations is reallocated pursuant to this clause (c), then the fees payable to the Banks pursuant to Section 2.5(a) and Section 3.4 shall be adjusted in accordance with such non-Defaulting Banks’ Pro Rata Shares; or
(v) if any Defaulting Bank’s Pro Rata Share of the LC Obligations is neither reallocated nor cash collateralized pursuant to this clause (c), then, without prejudice to any rights or remedies of any LC Issuer or any Bank hereunder, all fees that otherwise would have been payable to such Defaulting Bank (solely with respect to the portion of such Defaulting Bank’s Commitment that was utilized by such LC Obligations) and LC Fees payable under Section 3.4 with respect to such Defaulting Bank’s Pro Rata Share of the LC Obligations shall be payable to the applicable LC Issuer until such Defaulting Bank’s Pro Rata Share of the LC Obligation is cash collateralized and/or reallocated; and
(d) so long as any Bank is a Defaulting Bank, no LC Issuer shall be required to issue or Modify any Facility LC, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Banks and/or cash collateral will be provided by the Company in accordance with clause (c) above, and participating interests in any such newly issued or Modified Facility LC shall be allocated among non-Defaulting Banks in a manner consistent with clause(c)(i) above (and Defaulting Banks shall not participate therein).
(e) If (i) a Bankruptcy Event with respect to a Parent of any Bank shall occur following the date hereof and for so long as such event shall continue or (ii) any LC Issuer has a good faith belief that any Bank has defaulted in fulfilling its obligations under one or more other agreements in which such Bank commits to extend credit, such LC Issuer shall not be required to issue, amend or increase any Facility LC, unless such LC Issuer, as the case may be, shall have entered into arrangements with the Company or such Bank, satisfactory to such LC Issuer, as the case may be, to defease any risk to it in respect of such Bank hereunder.
(f) In the event that the Agent, the Company, and each LC Issuer each agrees that a Defaulting Bank has adequately remedied all matters that caused such Bank continues to be a Defaulting Bank, then the Banks’ Pro Rata Shares of the LC Obligations shall be readjusted to reflect the inclusion of such Bank’s Commitment and on such date such Bank shall purchase at par such of the Loans of the other Banks as the Agent shall determine may be necessary in order for such Bank to hold such Loans in accordance with its Pro Rata Share of the Aggregate Commitment; provided, that if the Company cash collateralized any portion of such Defaulting Bank’s Pro Rata Share of the LC Obligations pursuant to Section 4.7(c), such cash shall be returned to the Company.
Appears in 2 contracts
Sources: Credit Agreement (Brigham Minerals, Inc.), Credit Agreement (Brigham Minerals, Inc.)
Defaulting Banks. Notwithstanding any provision of this Agreement to the contrary, if any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Commitment Fees shall cease to accrue on the unfunded portion If any Letters of the Commitment of such Defaulting Bank pursuant to Section 2.5(a);
(b) the Commitment and Outstanding Credit Exposure of such Defaulting Bank shall not be included in determining whether the Majority Banks have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.1); provided, that, except as otherwise provided in Section 10.1, this clause (b) shall not apply to the vote of a Defaulting Bank in the case of an amendment, waiver or other modification requiring the consent of such Bank or each Bank directly affected thereby;
(c) if any LC Obligations exist are outstanding at the time a Bank becomes a Defaulting Bank Bank, and the Commitments have not been terminated in accordance with Section 8.01, then:
(i) so long as no Default or Event of Default shall be continuing immediately before or after giving effect to such reallocationhas occurred and is continuing, all or any part of such LC Obligation the participations in outstanding Letters of Credit shall be reallocated among the nonBanks that are Non-Defaulting Banks in accordance with their respective Pro Rata Share Applicable Percentages (disregarding any Defaulting Bank’s Commitment) but only to the extent that (x) the sum of (A) the aggregate principal amount of all nonAdvances made by the Non-Defaulting Banks (in their capacity as Banks) and outstanding at such time, plus (B) the Non-Defaulting Banks’ Outstanding Credit Exposure aggregate LC Exposures, plus (C) such Defaulting Bank’s LC Exposure, does not exceed the total of all nonNon-Defaulting Banks’ Commitments, (y) no Bank’s Outstanding Credit Exposure shall exceed its Commitment and (z) the conditions set forth in Section 11.2 are satisfied at such time;
(ii) if the reallocation described in subclause (iclause (i) above cannot, or can only partially, be effected, the Company shall within one (1) Business Day following notice by the Agentany Issuing Bank, cash collateralize for the benefit of the relevant LC Issuer such Defaulting Bank’s Pro Rata Share of the LC Obligations Exposure (after giving effect to any partial reallocation pursuant to subclause (iclause (i) above) by paying cash collateral to such Issuing Bank; provided that, so long as no Default is continuing, such cash collateral shall be released promptly upon the earliest of (A) the reallocation of the LC Exposure of the Defaulting Bank to Non-Defaulting Banks in accordance with clause (i) above, (B) a reduction in the procedures set forth outstanding amount available to be drawn under all outstanding Letters of Credit to zero, (C) the termination of the Defaulting Bank status of the applicable Bank, (D) such Issuing Bank’s good faith determination that there exists excess cash collateral (in which case, an amount equal to such excess cash collateral shall be released) or (E) the posting of cash collateral for the amount of a Defaulting Bank as contemplated by Section 9.2 for so long as 2.07(g). In the event any Letter of Credit or a portion thereof is collateralized, no fees shall be payable by the Company on the collateralized amount of such LC Obligation is outstandingLetter of Credit or a portion thereof;
(iii) if to the Company cash collateralizes any portion extent the Applicable Percentages of such Defaulting Bank’s Pro Rata Share Letters of Credit of the LC Obligations pursuant this clause (c), the Company shall not be required to pay any fees to such Defaulting Bank pursuant to Section 3.4 with respect to such Defaulting Bank’s Pro Rata Share of the LC Obligations during the period such Defaulting Bank’s Pro Rata Share of the LC Obligations is cash collateralized;
(iv) if the nonNon-Defaulting Banks’ Pro Rata Share of the LC Obligations is Banks are reallocated pursuant to this clause (cSection 2.07(a), then the fees payable to the Banks pursuant to Section 2.5(a4.01(b)(i) and Section 3.4 shall be adjusted in accordance with such nonthe Non-Defaulting Banks’ Pro Rata SharesApplicable Percentages of Letters of Credit as reallocated; or
(viv) if to the extent any Defaulting Bank’s Pro Rata Share Applicable Percentage of the LC Obligations Letters of Credit is neither reallocated nor cash collateralized nor reallocated pursuant to this clause (cSection 2.07(a), then, without prejudice to any rights or remedies of any LC Issuer Issuing Bank or any Bank hereunder, all letter of credit fees that otherwise would have been payable to such Defaulting Bank (solely with respect to the portion of such Defaulting Bank’s Commitment that was utilized by such LC Obligations) and LC Fees payable under Section 3.4 4.01(b)(i) with respect to such Defaulting Bank’s Pro Rata Share Applicable Percentage of the LC Obligations Letters of Credit that has not been reallocated or collateralized shall be payable to the applicable LC Issuer Issuing Bank until such Defaulting Bank’s Pro Rata Share Applicable Percentage of the LC Obligation is Letters of Credit has been fully cash collateralized and/or reallocated; and.
(db) so So long as any Bank is a Defaulting Bank, no LC Issuer Issuing Bank shall be required to issue issue, amend or Modify increase any Facility LCLetter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the nonNon-Defaulting Banks and/or cash collateral will be provided by the Company in accordance with clause (cSection 2.07(a) aboveor provided in accordance with Section 2.07(g), and participating interests in any such newly issued issued, amended or Modified Facility LC increased Letter of Credit shall be allocated among nonNon-Defaulting Banks in a manner consistent with clause(c)(iSection 2.07(a)(i) above (and Defaulting Banks shall not participate therein).
(ec) If (i) a Bankruptcy Event with respect to a Parent No Commitment of any Bank shall occur following be increased or otherwise affected, and, except as otherwise expressly provided in this Section 2.07, performance by the date hereof and for so long as such event shall continue or (ii) any LC Issuer has a good faith belief that any Bank has defaulted in fulfilling Company of its obligations under one or more other agreements in which such Bank commits to extend credit, such LC Issuer shall not be required excused or otherwise modified as a result of the operation of this Section 2.07. The rights and remedies against a Defaulting Bank under this Section 2.07 are in addition to issueany other rights and remedies which the Company, amend the Administrative Agent, any Bank or increase any Facility LC, unless Issuing Bank may have against such LC Issuer, as the case may be, shall have entered into arrangements with the Company or such Defaulting Bank, satisfactory to such LC Issuer, as the case may be, to defease any risk to it in respect of such Bank hereunder.
(d) [Reserved].
(e) [Reserved].
(f) In the event that the Agent, If the Company, the Administrative Agent and each LC Issuer each agrees Issuing Bank agree in writing in their reasonable determination that a Defaulting Bank has adequately remedied all matters that caused such Bank should no longer be deemed to be a Defaulting Bank, then the Banks’ Pro Rata Shares Administrative Agent will so notify the parties hereto, whereupon as of the LC Obligations shall be readjusted effective date specified in such notice and subject to reflect any conditions set forth therein (which may include arrangements with respect to any cash collateral), that Bank will, to the inclusion extent applicable, purchase, at par, that portion of such Bank’s Commitment and on such date such Bank shall purchase at par such of the Loans outstanding Advances of the other Banks or take such other actions as the Administrative Agent shall may determine may to be necessary to cause the Advances and funded and unfunded participations in order for such Bank Letters of Credit to hold such Loans be held on a pro rata basis by the Banks in accordance with its Pro Rata Share their Applicable Percentages (without giving effect to Section 2.07(a)), whereupon such Bank will cease to be a Defaulting Bank; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Aggregate CommitmentCompany while that Bank was a Defaulting Bank; and provided, further, that if except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Bank to Non-Defaulting Bank will constitute a waiver or release of any claim of any party hereunder arising from such Bank’s having been a Defaulting Bank.
(g) Notwithstanding anything to the contrary contained in this Agreement, any payment of principal, interest, commitment fees, Letter of Credit commissions or other amounts received by the Administrative Agent for the account of any Defaulting Bank under this Agreement (whether voluntary or mandatory, at maturity, pursuant to Article VIII 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 Bank to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Bank to any Issuing Bank hereunder; third, as the Company may request (so long as no Default exists), to the funding of any Advance in respect of which that Defaulting Bank has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fourth, as the Company may request, to be held in a cash collateralized collateral account to cash collateralize such Defaulting Bank’s participations in Letters of Credit that are then outstanding; fifth, if so determined by the Administrative Agent and the Company, to be held in a cash collateral account and released in order to satisfy obligations of such Defaulting Bank to fund Advances under this Agreement; sixth, if so determined by the Administrative Agent and the Company, to be held in a cash collateral account to cash collateralize such Defaulting Bank’s participations in Letters of Credit, seventh, to the payment of any portion amounts owing to the Banks or the Issuing Banks as a result of any judgment of a court of competent jurisdiction obtained by any Bank or Issuing Bank against such Defaulting Bank as a result of such Defaulting Bank’s Pro Rata Share breach of its obligations under this Agreement; eighth, 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 Bank as a result of such Defaulting Bank’s breach of its obligations under this Agreement; and ninth, to such Defaulting Bank or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the LC Obligations pursuant to Section 4.7(c)principal amount of any Advance in respect of which such Defaulting Bank 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 applicable conditions set forth in Article V were satisfied or waived, such payment shall be applied solely to pay the Advances of all Non-Defaulting Banks on a pro rata basis prior to being applied to the payment of any Advances of such Defaulting Bank; and provided further that any amounts held as cash collateral for funding obligations of a Defaulting Bank shall be returned to such Defaulting Bank upon the Companytermination of this Agreement and the satisfaction of such Defaulting Bank’s obligations hereunder. Any payments, prepayments or other amounts paid or payable to a Defaulting Bank that are applied (or held) to pay amounts owed by a Defaulting Bank or to post cash collateral pursuant to this Section 2.07 shall be deemed paid to and redirected by such Defaulting Bank, and each Bank irrevocably consents hereto.
(h) The Commitment, Revolving Credit Exposure and LC Exposure of any Defaulting Bank shall not be included in determining whether the Majority Banks or any other requisite Banks have taken or may take any action hereunder or under any Note (including any consent to any amendment, waiver or other modification pursuant to Section 10.01) except as set forth in Section 10.01.
Appears in 2 contracts
Sources: Revolving Credit and Letter of Credit Agreement (Cigna Group), Revolving Credit and Letter of Credit Agreement (Cigna Group)
Defaulting Banks. Notwithstanding any provision of this Agreement to the contrary, if any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Commitment Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Bank pursuant to Section 2.5(a);2.06.
(b) the Commitment The Commitments and Outstanding Credit Exposure Loans of such Defaulting Bank shall not be included in determining whether all Banks or the Majority Banks have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.1); provided, that, except as otherwise provided in Section 10.1, this clause (b) shall not apply to the vote of a Defaulting Bank in the case of an amendment, waiver or other modification pursuant to Section 11.04); provided that any waiver, amendment or modification (x) increasing or extending the term of the Commitment of, reducing amounts owed to or extending the final maturity of the loans of such Defaulting Bank or (y) requiring the consent of such Bank all Banks or each affected Bank directly which affects such Defaulting Bank differently than other affected therebyBanks shall, in each case, require the consent of such Defaulting Bank;
(c) if If any LC Obligations exist L/C Exposure exists at the time a such Bank becomes a Defaulting Bank then:
(i) so long as no Default or Event of Default shall be continuing immediately before or after giving effect to such reallocation, all or any part of the L/C Exposure of such LC Obligation Defaulting Bank shall be reallocated among the non-Defaulting Banks in accordance with their respective Pro Rata Share Revolving Percentages but only to the extent that (xi) the sum of all non-Defaulting Banks’ Outstanding Revolving Extensions of Credit plus such Defaulting Bank’s L/C Exposure does not exceed the total of all non-Defaulting Banks’ CommitmentsCommitments and ii) with respect to each such non-Defaulting Bank, (y) no the sum of such non-Defaulting Bank’s Outstanding Revolving Extensions of Credit plus its allocated percentage of such Defaulting Bank’s L/C Exposure shall does not exceed its Commitment and (z) the conditions set forth in Section 11.2 are satisfied at such timenon-Defaulting Bank’s Commitment;
(ii) if If the reallocation described in subclause clause (i) above cannot, or can only partially, be effected, the Company shall within one (1) Business Day following notice by the Agent, Administrative Agent cash collateralize for the benefit of the relevant LC Issuer applicable Issuing Lenders only the Company’s obligations corresponding to such Defaulting Bank’s Pro Rata Share of the LC Obligations L/C Exposure (after giving effect to any partial reallocation pursuant to subclause clause (i) above) in accordance with the procedures set forth in Section 9.2 for so long as such LC Obligation L/C Exposure is outstanding;
(iii) if If the Company cash collateralizes any portion of such Defaulting Bank’s Pro Rata Share of the LC Obligations L/C Exposure pursuant this to clause (c)ii) above, the Company shall not be required to pay any fees to such Defaulting Bank pursuant to Section 3.4 2.04(c)(i) with respect to such Defaulting Bank’s Pro Rata Share of the LC Obligations L/C Exposure during the period such Defaulting Bank’s Pro Rata Share of the LC Obligations L/C Exposure is cash collateralized;
(iv) if If the L/C Exposure of the non-Defaulting Banks’ Pro Rata Share of the LC Obligations Bank is reallocated pursuant to this clause (c)i) above, then the fees payable to the Banks pursuant to Section 2.5(a2.06(a) and Section 3.4 2.04(c)(i) shall be adjusted in accordance with such non-Defaulting Banks’ Pro Rata SharesRevolving Percentages; orand
(v) if If all or any portion of such Defaulting Bank’s Pro Rata Share of the LC Obligations L/C Exposure is neither reallocated nor cash collateralized pursuant to this clause (c)i) or (ii) above, then, without prejudice to any rights or remedies of any LC Issuer Issuing Lender or any other Bank hereunder, all fees that otherwise would have been payable to such Defaulting Bank (solely with respect to the portion of such Defaulting Bank’s Commitment that was utilized by such LC Obligations) and LC Fees payable under Section 3.4 2.04(c)(i) with respect to such Defaulting Bank’s Pro Rata Share of the LC Obligations L/C Exposure shall be payable to such Issuing Lender until and to the applicable LC Issuer until extent that such Defaulting Bank’s Pro Rata Share of the LC Obligation L/C Exposure is reallocated and/or cash collateralized and/or reallocated; andcollateralized;
(d) so long as any such Bank is a Defaulting Bank, no LC Issuer Issuing Lender shall be required to issue issue, amend or Modify increase any Facility LCLetter of Credit, unless it is satisfied that the related exposure and the Defaulting Bank’s then outstanding L/C Exposure will be 100% covered by the Commitments of the non-Defaulting Banks and/or cash collateral will be provided by the Company in accordance with clause (c) aboveSection 2.12(c), and participating interests in any such newly issued or Modified Facility LC increased Letter of Credit shall be allocated among non-Defaulting Banks in a manner consistent with clause(c)(iSection 2.12(c) above (and such Defaulting Banks Bank shall not participate therein).
(e) If Any amount payable to such Defaulting Bank hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Bank pursuant to Section 4.07(b) but excluding Section 5.07) shall, in lieu of being distributed to such Defaulting Bank, be retained by the Administrative Agent in a segregated account and, subject to any applicable requirements of law, be applied at such time or times as may be determined by the Administrative Agent (i) first, to the payment of any amounts owing by such Defaulting Bank to the Administrative Agent and the Issuing Lenders hereunder, (ii) second, to the funding of any Loan or participation in any Letter of Credit in respect of which such Defaulting Bank has failed to fund its portion thereof as required by this Agreement, (iii) third, if so determined by the Administrative Agent and the Company, held in such account as cash collateral for future funding obligations of the Defaulting Bank in respect of any Loans or participations in Letters of Credit under this Agreement, (iv) fourth, to the payment of any amounts then owing to the Banks or Issuing Lenders as a Bankruptcy Event result of any judgment of a court of competent jurisdiction obtained by any Bank or Issuing Lender against such Defaulting Bank as a result of such Defaulting Bank’s breach of its obligations under this Agreement, (v) fifth, to the payment of any amounts then owing to the Company as a result of any judgment of a court of competent jurisdiction obtained by the Company against such Defaulting Bank as a result of such Defaulting Bank’s breach of its obligations under this Agreement, and (vi) sixth, to such Defaulting Bank or as otherwise directed by a court of competent jurisdiction; provided, with respect to this clause (vi), that if such payment is (x) a Parent prepayment of the principal amount of any Bank shall occur following Loans and (y) made at a time when the date hereof and for so long as such event shall continue or (ii) any LC Issuer has a good faith belief that any Bank has defaulted conditions set forth in fulfilling its obligations under one or more other agreements in which such Bank commits to extend creditSection 6.02 are satisfied, such LC Issuer payment shall not be required applied solely to issueprepay the Loans of all non-Defaulting Banks pro rata prior to being applied to the prepayment of any Loans, amend or increase reimbursement obligations owed to, any Facility LC, unless such LC Issuer, as the case may be, shall have entered into arrangements with the Company or such Defaulting Bank, satisfactory to such LC Issuer, as the case may be, to defease any risk to it in respect of such Bank hereunder.
(f) . In the event that the Administrative Agent, the Company, Issuing Lenders and each LC Issuer the Company each agrees that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the Banks’ Pro Rata Shares L/C Exposure of the LC Obligations Banks shall be readjusted to reflect the inclusion of such Bank’s Commitment and on such date such previously Defaulting Bank shall purchase at par such of the Loans of the other Banks (other than Money Market Loans) as the Administrative Agent shall determine may be necessary in order for such previously Defaulting Bank to hold such Loans in accordance with its Pro Rata Share of the Aggregate Commitment; provided, that if the Company cash collateralized any portion of such Defaulting Bank’s Pro Rata Share of the LC Obligations pursuant to Section 4.7(c), such cash shall be returned to the CompanyRevolving Percentage.
Appears in 2 contracts
Sources: Credit Agreement (Motorola Solutions, Inc.), Revolving Credit Agreement (Motorola Solutions, Inc.)
Defaulting Banks. Notwithstanding any provision of this Agreement to the contrary, if (a) If any Bank becomes with a Revolving Credit Commitment becomes, and during the period it remains, a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Commitment Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Bank pursuant to Section 2.5(a);
(b) the Commitment and Outstanding Credit Exposure of such Defaulting Bank shall not be included in determining whether the Majority Banks have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.1); providedapply, that, except as otherwise provided in Section 10.1, this clause (b) shall not apply notwithstanding anything to the vote of a Defaulting Bank contrary in the case of an amendment, waiver or other modification requiring the consent of such Bank or each Bank directly affected thereby;
(c) if any LC Obligations exist at the time a Bank becomes a Defaulting Bank thenthis Agreement:
(i) so long as no Default or Event of Default shall be continuing immediately before or after giving effect to such reallocation, all or any part of such LC Obligation shall Defaulting Bank’s participation in Letter of Credit Outstandings and Swing Loans will, subject to the limitation in the proviso below, automatically be reallocated among the non-Defaulting Banks in accordance with their respective Pro Rata Share but only to the extent that (x) the sum of all non-Defaulting Banks’ Outstanding Credit Exposure does not exceed the total of all non-Defaulting Banks’ Commitments, (y) effective no Bank’s Outstanding Credit Exposure shall exceed its Commitment and (z) the conditions set forth in Section 11.2 are satisfied at such time;
(ii) if the reallocation described in subclause (i) above cannot, or can only partially, be effected, the Company shall within later than one (1) Business Day following notice by after the Agent, cash collateralize for Administrative Agent has actual knowledge that such Bank has become a Defaulting Bank) among the benefit Non-Defaulting Banks pro rata in accordance with their respective Revolver Percentages (calculated as if the Defaulting Bank’s Revolving Credit Commitment was reduced to zero and each Non-Defaulting Bank’s Revolving Credit Commitment had been increased proportionately); provided that the sum of each Non-Defaulting Bank’s total Revolving Credit Exposure may not in any event exceed the relevant LC Issuer Revolving Credit Commitment of such Non-Defaulting Bank as in effect at the time of such reallocation; and
(ii) to the extent that any portion (the “unreallocated portion”) of such Defaulting Bank’s Pro Rata Share participation in Letter of the LC Obligations (after giving effect to any partial reallocation Credit Outstandings and Swing Loans cannot be reallocated pursuant to subclause clause (i) aboveabove for any reason, the Borrower will, not later than two (2) Business Days after demand by the Administrative Agent (at the direction of any Letter of Credit Issuer and/or the Swing Lender), (y) Cash Collateralize the obligations of the Borrower to such Letter of Credit Issuer or the Swing Lender in accordance with respect of such exposure, as the procedures set forth case may be, in Section 9.2 for so long as such LC Obligation is outstanding;
(iii) if an amount at least equal to the Company cash collateralizes any aggregate amount of the unreallocated portion of such Defaulting Bank’s Pro Rata Share participation in Letter of Credit Outstandings and Swing Loans or (z) make other arrangements satisfactory to the LC Obligations pursuant this clause (c)Administrative Agent, the Company shall not be required Letter of Credit Issuer and the Swing Lender in their sole discretion to pay protect them against the risk of non-payment by such Defaulting Bank; provided that neither any fees to such reallocation nor any payment by a Non-Defaulting Bank pursuant thereto nor any such Cash Collateralization or reduction will constitute a waiver or release of any claim the Borrower, the Administrative Agent, a Letter of Credit Issuer, the Swing Lender or any other Bank may have against such Defaulting Bank pursuant or cause such Defaulting Bank to be a Non-Defaulting Bank.
(b) If the Borrower, the Administrative Agent, the Letter of Credit Issuers and the Swing Lender agree in writing in their discretion that any Defaulting Bank has ceased to be a Defaulting Bank, 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, that Bank will, to the extent applicable, purchase at par that portion of outstanding Loans of the other Banks or take such other actions as the Administrative Agent may determine to be necessary to cause the Loans and funded and unfunded participations in Letters of Credit and Swing Loans to be held pro rata by the Banks in accordance with their Percentage under the applicable Credit without giving effect to Section 3.4 2.17(a), whereupon such Bank will cease to be a Defaulting Bank; provided that no adjustments will be made retroactively with respect to such fees accrued or payments made by or on behalf of the Borrower while that Bank was a Defaulting Bank; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Bank to Non-Defaulting Bank will constitute a waiver or release of any claim of any party hereunder arising from that Bank’s Pro Rata Share of the LC Obligations during the period such having been a Defaulting Bank’s Pro Rata Share of the LC Obligations is cash collateralized;.
(ivc) if the non-Defaulting Banks’ Pro Rata Share of the LC Obligations is reallocated pursuant to this clause (c), then the fees payable to the Banks pursuant to Section 2.5(a) and Section 3.4 shall be adjusted in accordance with such non-Defaulting Banks’ Pro Rata Shares; or
(v) if any Defaulting Bank’s Pro Rata Share of the LC Obligations is neither reallocated nor cash collateralized pursuant to this clause (c), then, without prejudice to any rights or remedies of any LC Issuer or any Bank hereunder, all fees that otherwise would have been payable to such Defaulting Bank (solely with respect to the portion of such Defaulting Bank’s Commitment that was utilized by such LC Obligations) and LC Fees payable under Section 3.4 with respect to such Defaulting Bank’s Pro Rata Share of the LC Obligations shall be payable to the applicable LC Issuer until such Defaulting Bank’s Pro Rata Share of the LC Obligation is cash collateralized and/or reallocated; and
(d) so So long as any Bank is a Defaulting Bank, no LC Letter of Credit Issuer shall be required to issue or Modify any Facility LC, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Banks and/or cash collateral will be provided by the Company in accordance with clause (c) above, and participating interests in any such newly issued or Modified Facility LC shall be allocated among non-Defaulting Banks in a manner consistent with clause(c)(i) above (and Defaulting Banks shall not participate therein).
(e) If (i) a Bankruptcy Event with respect to a Parent of any Bank shall occur following the date hereof and for so long as such event shall continue or (ii) any LC Issuer has a good faith belief that any Bank has defaulted in fulfilling its obligations under one or more other agreements in which such Bank commits to extend credit, such LC Issuer shall not be required to issue, amend amend, extend, renew or increase any Facility LC, Letter of Credit unless such LC Issuer, as it is reasonably satisfied that the case may be, shall have entered into arrangements Borrower has complied with the Company or such Bank, satisfactory to such LC Issuer, as the case may be, to defease any risk to it in respect requirements of such Bank hereunderSection 2A.1(a)(iii).
(f) In the event that the Agent, the Company, and each LC Issuer each agrees that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the Banks’ Pro Rata Shares of the LC Obligations shall be readjusted to reflect the inclusion of such Bank’s Commitment and on such date such Bank shall purchase at par such of the Loans of the other Banks as the Agent shall determine may be necessary in order for such Bank to hold such Loans in accordance with its Pro Rata Share of the Aggregate Commitment; provided, that if the Company cash collateralized any portion of such Defaulting Bank’s Pro Rata Share of the LC Obligations pursuant to Section 4.7(c), such cash shall be returned to the Company.
Appears in 2 contracts
Sources: Credit Agreement (Alliance Data Systems Corp), Credit Agreement (Alliance Data Systems Corp)
Defaulting Banks. Notwithstanding anything contained in Sections 2.8, 2.9 or any other provision of this Agreement to the contrary, if any Bank becomes a Defaulting BankBank then: all Letters of Credit Outstanding and Swing Loans outstanding at such time, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Commitment Fees shall cease to accrue on the unfunded portion and all Letters of the Commitment of such Defaulting Bank pursuant to Section 2.5(a);
(b) the Commitment and Outstanding Credit Exposure of such Defaulting Bank shall not be included in determining whether the Majority Banks have taken issued or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.1); provided, that, except as otherwise provided in Section 10.1, this clause (b) shall not apply to the vote of Swing Loans made while there exists a Defaulting Bank in the case of an amendment, waiver or other modification requiring the consent of such Bank or each Bank directly affected thereby;
(c) if any LC Obligations exist at the time a Bank becomes a Defaulting Bank then:
(i) so long as no Default or Event of Default shall be continuing immediately before or after giving effect to such reallocation, all or any part of such LC Obligation shall be reallocated among the non-Defaulting Banks in accordance with their respective Pro Rata Share Ratable Shares (such Ratable Shares shall be determined without reference to each Defaulting Bank’s Ratable Share) so long as no Potential Default (other than a Potential Default in respect of any Aerostructures Filing Event of Default) or Event of Default (other than any Aerostructures Filing Event of Default) exists on the date of reallocation and thereafter continues uncured, but only to the extent that (xa) the sum of all non-Defaulting Banks’ Revolving Credit Loans then outstanding plus the sum of such non-Defaulting Banks’ Ratable Share of the Dollar Equivalent of all Swing Loans then outstanding and Letters of Credit Outstanding Credit Exposure at such time does not exceed the total of all non-Defaulting Banks’ CommitmentsRevolving Credit Commitments and (b) the aggregate obligation of each non-Defaulting Bank to acquire, (y) no refinance or fund any participations in the Defaulting Bank’s portion of Letters of Credit Outstanding Credit Exposure and Swing Loans pursuant to reallocation contemplated above shall not exceed its Commitment and the positive difference between (zi) the conditions set forth in Section 11.2 are satisfied Revolving Credit Commitment of such Bank minus (ii) such Bank’s Revolving Credit Loans then outstanding plus such Bank’s Ratable Share of the Dollar Equivalent of all Swing Loans then outstanding and Letters of Credit Outstanding at such time;
(ii) if . If the reallocation described in subclause (i) above the preceding sentence cannot, or can only partially, be effected, the Company Borrowers shall within one (1) Business Day following notice by the Administrative Agent, (1) first, prepay outstanding Swing Loans and (2) second, cash collateralize for the benefit of the relevant LC Issuer such Defaulting Bank’s Pro Rata Share portion of the LC Obligations Letters of Credit Outstanding (in each case, after giving effect to any partial reallocation pursuant to subclause (i) above) in accordance with the procedures set forth in Section 9.2 for so long as immediately preceding sentence). To the extent such LC Obligation is outstanding;
(iii) if the Company cash collateralizes any portion Letters of such Defaulting Bank’s Pro Rata Share of the LC Obligations pursuant this clause (c), the Company shall not be required to pay any fees to such Defaulting Bank pursuant to Section 3.4 with respect to such Defaulting Bank’s Pro Rata Share of the LC Obligations during the period such Defaulting Bank’s Pro Rata Share of the LC Obligations is cash collateralized;
(iv) if the non-Defaulting Banks’ Pro Rata Share of the LC Obligations is Credit Outstanding and Swing Loans are reallocated pursuant to this clause (c)Section 2.14, then the fees payable to the Banks pursuant to Section 2.5(a2.8.2 (but not Section 2.3) and Section 3.4 shall be adjusted in accordance with such non-Defaulting Banks’ Pro Rata Ratable Shares; or
(v) if any . To the extent a portion of the Defaulting Bank’s Pro Rata Share Letters of the LC Obligations is neither reallocated nor Credit outstanding are cash collateralized pursuant to this clause (c)2) above, the Borrowers shall not be obligated to pay any fees to or for the account of such Defaulting Bank pursuant to Section 2.8.2 with respect to such Defaulting Bank’s Letter of Credit Outstandings during the period such Defaulting Bank’s Letter of Credit Outstandings are cash collateralized. To the extent such Letters of Credit Outstanding are not reallocated pursuant to this Section 2.14, or the Defaulting Bank’s Ratable Share of Letters of Credit Outstanding have not been cash collateralized, then, without prejudice to any rights or remedies of any LC Issuer the Issuing Bank or any Bank hereunder, all fees Commitment Fees that otherwise would have been payable to such Defaulting Bank (solely with respect to the portion of such Defaulting Bank’s Commitment that was utilized by such LC ObligationsLetters of Credit Outstanding) and LC Letter of Credit Fees payable under Section 3.4 with respect to such Defaulting Bank’s Pro Rata Ratable Share of the LC Obligations Letters of Credit Outstanding shall be payable to the applicable LC Issuer until such Issuing Bank. Subject to Section 11.23, nothing contained in this Section or elsewhere in this Agreement and no reallocation of any Defaulting Bank’s Pro Rata Ratable Share of the LC Obligation is cash collateralized and/or reallocated; and
(d) so long as any obligation hereunder shall relieve such Defaulting Bank is a Defaulting Bank, no LC Issuer shall be required of its obligation to issue or Modify fund any Facility LC, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Banks and/or cash collateral will be provided by the Company in accordance with clause (c) above, and participating interests in any such newly issued or Modified Facility LC shall be allocated among non-Defaulting Banks in a manner consistent with clause(c)(i) above (and Defaulting Banks shall not participate therein).
(e) If (i) a Bankruptcy Event with respect to a Parent portion of any Bank shall occur following the date hereof and for so long as amount owed by such event shall continue or (ii) any LC Issuer has a good faith belief that any Bank has defaulted in fulfilling its obligations under one or more other agreements in which such Bank commits to extend credit, such LC Issuer shall not be required to issue, amend or increase any Facility LC, unless such LC Issuer, as the case may be, shall have entered into arrangements with the Company or such Bank, satisfactory to such LC Issuer, as the case may be, to defease any risk to it in respect of such Defaulting Bank hereunder.
(f) . In the event that the Administrative Agent, the CompanyBorrower, and the Issuing Banks each LC Issuer each agrees agree that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the Banks’ Pro Rata Shares Letters of Credit Outstanding and the LC Obligations Swing Loans outstanding shall be readjusted to reflect the inclusion of such Bank’s Revolving Credit Commitment and on such date date, such Bank shall purchase at par such of the Loans of the other Banks as the Administrative Agent shall determine may be necessary in order for such Bank to hold such Loans in accordance with its Pro Rata Share of the Aggregate Commitment; provided, that if the Company cash collateralized any portion of such Defaulting Bank’s Pro Rata Share of the LC Obligations pursuant to Section 4.7(c), such cash shall be returned to the CompanyRatable Share.
Appears in 2 contracts
Sources: Credit Agreement (Triumph Group Inc), Credit Agreement (Triumph Group Inc)
Defaulting Banks. Notwithstanding any provision of this Agreement to the contrary, if any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Commitment Fees fees shall cease to accrue on the unfunded unused portion of the Commitment of such Defaulting Bank pursuant to Section 2.5(asubsection 2.4(a);
(b) the Commitment and Aggregate Outstanding Extensions of Credit Exposure of such Defaulting Bank shall not be included in determining whether all Banks, all affected Banks or the Majority Required Banks have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.1); provided, that, except as otherwise provided in Section 10.1, this clause (b) shall not apply to the vote of a Defaulting Bank in the case of an amendment, waiver or other modification requiring the consent of such Bank or each Bank directly affected thereby;
(c) if any LC Obligations exist at the time a Bank becomes a Defaulting Bank then:
pursuant to subsection 10.1); provided that (i) so long as no Default or Event of Default shall be continuing immediately before or after giving effect to such reallocation, all or any part of such LC Obligation shall be reallocated among the non-Defaulting Banks in accordance with their respective Pro Rata Share but only to the extent that (x) the sum of all non-Defaulting Banks’ Outstanding Credit Exposure does not exceed the total of all non-Defaulting Banks’ Commitments, (y) no Bank’s Outstanding Credit Exposure shall exceed its Commitment and (z) the conditions set forth in Section 11.2 are satisfied at such time;
(ii) if the reallocation described in subclause (i) above cannot, or can only partially, be effected, the Company shall within one (1) Business Day following notice by the Agent, cash collateralize for the benefit of the relevant LC Issuer such Defaulting Bank’s Pro Rata Share of the LC Obligations (after giving effect to any partial reallocation pursuant to subclause (i) above) in accordance with the procedures set forth in Section 9.2 for so long as such LC Obligation is outstanding;
(iii) if the Company cash collateralizes any portion of such Defaulting Bank’s Pro Rata Share of the LC Obligations pursuant this clause (c), the Company shall not be required to pay any fees to such Defaulting Bank pursuant to Section 3.4 with respect to such Defaulting Bank’s Pro Rata Share of the LC Obligations during the period such Defaulting Bank’s Pro Rata Share of the LC Obligations is cash collateralized;
(iv) if the non-Defaulting Banks’ Pro Rata Share of the LC Obligations is reallocated pursuant to this clause (c), then the fees payable to the Banks pursuant to Section 2.5(a) and Section 3.4 shall be adjusted in accordance with such non-Defaulting Banks’ Pro Rata Shares; or
(v) if any Defaulting Bank’s Pro Rata Share of the LC Obligations is neither reallocated nor cash collateralized pursuant to this clause (c), then, without prejudice to any rights or remedies of any LC Issuer or any Bank hereunder, all fees that otherwise would have been payable to such Defaulting Bank (solely with respect to the portion of such Defaulting Bank’s Commitment that was utilized by may not be increased or extended without its consent and (ii) the principal amount of, or interest or fees payable on, Loans may not be reduced or excused or the scheduled date of payment may not be postponed as to such LC Obligations) and LC Fees payable under Section 3.4 with respect to Defaulting Bank without such Defaulting Bank’s Pro Rata Share of the LC Obligations shall be payable to the applicable LC Issuer until such Defaulting Bank’s Pro Rata Share of the LC Obligation is cash collateralized and/or reallocatedconsent; and
(d) so long as any Bank is a Defaulting Bank, no LC Issuer shall be required to issue or Modify any Facility LC, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Banks and/or cash collateral will be provided by the Company in accordance with clause (c) above, and participating interests in any such newly issued or Modified Facility LC shall be allocated among non-Defaulting Banks in a manner consistent with clause(c)(i) above (and Defaulting Banks shall not participate therein).
(e) If (i) a Bankruptcy Event with respect to a Parent of any Bank shall occur following the date hereof and for so long as such event shall continue or (ii) any LC Issuer has a good faith belief that any Bank has defaulted in fulfilling its obligations under one or more other agreements in which such Bank commits to extend credit, such LC Issuer shall not be required to issue, amend or increase any Facility LC, unless such LC Issuer, as the case may be, shall have entered into arrangements with the Company or such Bank, satisfactory to such LC Issuer, as the case may be, to defease any risk to it in respect of such Bank hereunder.
(f) In the event that the Agent, Agent and the Company, and each LC Issuer Company each agrees that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the Banks’ Pro Rata Shares of the LC Obligations shall be readjusted to reflect the inclusion of such Bank’s Commitment and on such date such Bank shall purchase at par such of the Loans of the other Banks (other than CAF Loans) as the Agent shall determine may be necessary in order for such Bank to hold such Loans in accordance with its Pro Rata Share Commitment Percentage; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Aggregate Commitment; provided, that if the Company cash collateralized any portion of while such Bank was a Defaulting Bank’s Pro Rata Share of the LC Obligations pursuant to Section 4.7(c), such cash shall be returned to the Company.
Appears in 2 contracts
Sources: 364 Day Revolving Credit Agreement (Humana Inc), 364 Day Revolving Credit Agreement (Humana Inc)
Defaulting Banks. Notwithstanding any provision of this Agreement to the contrary, if If any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Commitment Fees shall cease to accrue on the unfunded portion of neither the Commitment of such Defaulting Bank pursuant to Section 2.5(a);
(b) nor the Commitment and Outstanding Credit Exposure Loans of such Defaulting Bank shall not be included in determining whether all Banks or the Majority Required Banks have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.19.05); providedprovided that any waiver, that, except as otherwise provided in Section 10.1, this clause (b) shall not apply to the vote of a Defaulting Bank in the case of an amendment, waiver amendment or other modification requiring the consent of all Banks which affects such Defaulting Bank differently than other affected Banks shall require the consent of such Defaulting Bank; provided, further that no waiver, amendment or each modification of the type described in clause (i), (ii) or (iii) of Section 9.05 may be made without the written consent of any Defaulting Bank directly affected thereby;
(cb) the Company may, at its sole expense, upon notice to such Defaulting Bank and the Administrative Agent, require such Defaulting Bank to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in Section 9.06, with the Company or the replacement Bank paying the processing and recording fee), all of its interests, rights and obligations under this Agreement to an Assignee that shall assume such obligations (which Assignee may be another Bank, if any LC Obligations exist at the time a Bank becomes a Defaulting Bank then:
accepts such assignment); provided that (i) so long as no Default or Event the Company shall have received the prior written consent of Default shall be continuing immediately before or after giving effect the Administrative Agent to such reallocation, all or any part of such LC Obligation shall be reallocated among the non-Defaulting Banks in accordance with their respective Pro Rata Share but only assignment (to the extent that (x) the sum of all non-Defaulting Banks’ Outstanding Credit Exposure does such consent would otherwise be required pursuant to Section 9.06), which consent shall not exceed the total of all non-Defaulting Banks’ Commitmentsunreasonably be withheld, (y) no Bank’s Outstanding Credit Exposure shall exceed its Commitment delayed or conditioned, and (zii) such Defaulting Bank shall have received payment of an amount equal to the conditions set forth in Section 11.2 are satisfied at outstanding principal of its Loans, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the Assignee (to the extent of such timeoutstanding principal and accrued interest and fees) or the Company;
(iic) if facility fees shall cease to accrue on the reallocation described in subclause (i) above cannot, or can only partially, be effected, the Company shall within one (1) Business Day following notice by the Agent, cash collateralize for the benefit unused portion of the relevant LC Issuer such Defaulting Bank’s Pro Rata Share Commitment of the LC Obligations (after giving effect to any partial reallocation pursuant to subclause (i) above) in accordance with the procedures set forth in Section 9.2 for so long as such LC Obligation is outstanding;
(iii) if the Company cash collateralizes any portion of such Defaulting Bank’s Pro Rata Share of the LC Obligations pursuant this clause (c), the Company shall not be required to pay any fees to such Defaulting Bank pursuant to Section 3.4 with respect 2.08;
(d) notwithstanding any contrary provision in this Agreement, the Company may (i) prepay, without penalty or premium, the Loans made by a Defaulting Bank and (ii) terminate the unused amount of the Commitment of a Defaulting Bank, in each case, (x) without pro rata prepayment of Loans of other Banks or pro rata termination of Commitments of other Banks and (y) upon not less than two Domestic Business Days’ prior notice to the Administrative Agent (which will promptly notify the Banks thereof), it being understood that such prepayment and termination will not be deemed to be a waiver or release of any claim the Company or the Administrative Agent may have against such Defaulting Bank’s Pro Rata Share of the LC Obligations during the period such Defaulting Bank’s Pro Rata Share of the LC Obligations is cash collateralized;; and
(ive) if the non-Defaulting Banks’ Pro Rata Share of the LC Obligations is reallocated pursuant to nothing in this clause (c), then the fees payable to the Banks pursuant to Section 2.5(a) and Section 3.4 shall be adjusted in accordance with such non-Defaulting Banks’ Pro Rata Shares; or
(v) if any Defaulting Bank’s Pro Rata Share of the LC Obligations is neither reallocated nor cash collateralized pursuant to this clause (c), then, without prejudice to affect any rights or remedies of the Company may have against any LC Issuer or any Bank hereunder, all fees that otherwise would have been payable to such Defaulting Bank (solely with respect to the portion of such Defaulting Bank’s Commitment that was utilized by such LC Obligations) and LC Fees payable under Section 3.4 with respect to such Defaulting Bank’s Pro Rata Share of the LC Obligations shall be payable to the applicable LC Issuer until such Defaulting Bank’s Pro Rata Share of the LC Obligation is cash collateralized and/or reallocated; and
(d) so long as any Bank is a Defaulting Bank, no LC Issuer shall be required to issue or Modify any Facility LC, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Banks and/or cash collateral will be provided by the Company in accordance with clause (c) above, and participating interests in any such newly issued or Modified Facility LC shall be allocated among non-Defaulting Banks in a manner consistent with clause(c)(i) above (and Defaulting Banks shall not participate therein).
(e) If (i) a Bankruptcy Event with respect to a Parent of any Bank shall occur following the date hereof and for so long as such event shall continue or (ii) any LC Issuer has a good faith belief that any Bank has defaulted in fulfilling its obligations under one or more other agreements in which such Bank commits to extend credit, such LC Issuer shall not be required to issue, amend or increase any Facility LC, unless such LC Issuer, as the case may be, shall have entered into arrangements with the Company or such Bank, satisfactory to such LC Issuer, as the case may be, to defease any risk to it in respect of such Bank hereunder.
(f) . In the event and on the date that the Agent, Administrative Agent and the Company, and Company each LC Issuer each agrees agree that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the Banks’ Pro Rata Shares of the LC Obligations shall be readjusted to reflect the inclusion of such Bank’s Commitment and on such date such Bank shall purchase at par such of the Loans of the other Banks as the Administrative Agent shall determine may be necessary in order for such Bank to hold such Loans in accordance with its Pro Rata Share of the Aggregate Commitment; provided, that if the Company cash collateralized any portion of Commitment and such Bank shall no longer be a Defaulting Bank’s Pro Rata Share of the LC Obligations . Each party hereto agrees that (a) an assignment required pursuant to Section 4.7(c)2.16(b) may be effected pursuant to an Assignment and Assumption executed by the Company, the Administrative Agent and the assignee and (b) the Bank required to make such cash assignment need not be a party thereto in order for such assignment to be effective and shall be returned deemed to have consented to and be bound by the Companyterms thereof; provided that, following the effectiveness of any such assignment, the other parties to such assignment agree to execute and deliver such documents necessary to evidence such assignment as reasonably requested by the applicable Bank, provided, further that any such documents shall be without recourse to or warranty by the parties thereto.
Appears in 1 contract
Defaulting Banks. Notwithstanding anything contained in Sections 2.8, 2.9 or any other provision of this Agreement to the contrary, if any Bank becomes a Defaulting BankBank then: all Letters of Credit Outstanding and Swing Loans outstanding at such time, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Commitment Fees shall cease to accrue on the unfunded portion and all Letters of the Commitment of such Defaulting Bank pursuant to Section 2.5(a);
(b) the Commitment and Outstanding Credit Exposure of such Defaulting Bank shall not be included in determining whether the Majority Banks have taken issued or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.1); provided, that, except as otherwise provided in Section 10.1, this clause (b) shall not apply to the vote of Swing Loans made while there exists a Defaulting Bank in the case of an amendment, waiver or other modification requiring the consent of such Bank or each Bank directly affected thereby;
(c) if any LC Obligations exist at the time a Bank becomes a Defaulting Bank then:
(i) so long as no Default or Event of Default shall be continuing immediately before or after giving effect to such reallocation, all or any part of such LC Obligation shall be reallocated among the non-Defaulting Banks in accordance with their respective Pro Rata Share Ratable Shares (such Ratable Shares shall be determined without reference to each Defaulting Lender's Ratable Share) so long as no Potential Default or Event of Default exists on the date of reallocation and thereafter continues uncured, but only to the extent that (xa) the sum of all non-Defaulting Banks’ ' Revolving Credit Loans then outstanding plus the sum of such non-Defaulting Banks' Ratable Share of the Dollar Equivalent of all Swing Loans then outstanding and Letters of Credit Outstanding Credit Exposure at such time does not exceed the total of all non-Defaulting Banks’ Commitments, (y) no Bank’s Outstanding Credit Exposure shall exceed its Commitment ' Commitments and (zb) the conditions set forth aggregate obligation of each non-Defaulting Bank to acquire, refinance or fund any participations in Section 11.2 are satisfied the Defaulting Bank's portion of Letters of Credit Outstanding and Swing Loans pursuant to reallocation contemplated above shall not exceed the positive difference between (i) the Commitment of such Bank minus (ii) such Bank's Revolving Credit Loans then outstanding plus such Bank's Ratable Share of the Dollar Equivalent of all Swing Loans then outstanding and Letters of Credit Outstanding at such time;
(ii) if . If the reallocation described in subclause (i) above the preceding sentence cannot, or can only partially, be effected, the Company Borrowers shall within one (1) Business Day following notice by the Administrative Agent, (1) first, prepay outstanding Swing Loans and (2) second, cash collateralize for the benefit of the relevant LC Issuer such Defaulting Bank’s Pro Rata Share 's portion of the LC Obligations Letters of Credit Outstanding (after giving effect to any partial reallocation pursuant to subclause (i) above) in accordance with the procedures set forth in Section 9.2 for so long as immediately preceding sentence). To the extent such LC Obligation is outstanding;
(iii) if the Company cash collateralizes any portion Letters of such Defaulting Bank’s Pro Rata Share of the LC Obligations pursuant this clause (c), the Company shall not be required to pay any fees to such Defaulting Bank pursuant to Section 3.4 with respect to such Defaulting Bank’s Pro Rata Share of the LC Obligations during the period such Defaulting Bank’s Pro Rata Share of the LC Obligations is cash collateralized;
(iv) if the non-Defaulting Banks’ Pro Rata Share of the LC Obligations is Credit Outstanding and Swing Loans are reallocated pursuant to this clause (c)Section 2.14, then the fees payable to the Banks pursuant to Section 2.5(a2.8.2 (but not Section 2.3) and Section 3.4 shall be adjusted in accordance with such non-Defaulting Banks’ Pro Rata ' Ratable Shares; or
(v) if any . To the extent a portion of the Defaulting Bank’s Pro Rata Share 's Letters of the LC Obligations is neither reallocated nor Credit outstanding are cash collateralized pursuant to this clause (c)2) above, the Borrowers shall not be obligated to pay any fees to or for the account of such Defaulting Bank pursuant to Section 2.8.2 with respect to such Defaulting Bank's Letter of Credit Outstandings during the period such Defaulting Bank's Letter of Credit Outstandings are cash collateralized. To the extent such Letters of Credit Outstanding are not reallocated pursuant to this Section 2.14, or the Defaulting Bank's Ratable Share of Letters of Credit Outstanding have not been cash collateralized, then, without prejudice to any rights or remedies of any LC Issuer the Issuing Bank or any Bank hereunder, all fees Commitment Fees that otherwise would have been payable to such Defaulting Bank (solely with respect to the portion of such Defaulting Bank’s 's Commitment that was utilized by such LC ObligationsLetters of Credit Outstanding) and LC Letter of Credit Fees payable under Section 3.4 with respect to such Defaulting Bank’s Pro Rata 's Ratable Share of the LC Obligations Letters of Credit Outstanding shall be payable to the applicable LC Issuer until Issuing Bank. Nothing contained in this Section or elsewhere in this Agreement and no reallocation of any Defaulting Bank's Ratable Share of any obligation hereunder shall relieve such Defaulting Bank’s Pro Rata Share Bank of the LC Obligation is cash collateralized and/or reallocated; and
(d) so long as its obligation to fund any Bank is a Defaulting Bank, no LC Issuer shall be required to issue or Modify any Facility LC, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Banks and/or cash collateral will be provided by the Company in accordance with clause (c) above, and participating interests in any such newly issued or Modified Facility LC shall be allocated among non-Defaulting Banks in a manner consistent with clause(c)(i) above (and Defaulting Banks shall not participate therein).
(e) If (i) a Bankruptcy Event with respect to a Parent portion of any Bank shall occur following the date hereof and for so long as amount owed by such event shall continue or (ii) any LC Issuer has a good faith belief that any Bank has defaulted in fulfilling its obligations under one or more other agreements in which such Bank commits to extend credit, such LC Issuer shall not be required to issue, amend or increase any Facility LC, unless such LC Issuer, as the case may be, shall have entered into arrangements with the Company or such Bank, satisfactory to such LC Issuer, as the case may be, to defease any risk to it in respect of such Defaulting Bank hereunder.
(f) . In the event that the Administrative Agent, the CompanyBorrower, and the Issuing Banks each LC Issuer each agrees agree that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the Banks’ Pro Rata Shares Letters of Credit Outstanding and the LC Obligations Swing Loans outstanding shall be readjusted to reflect the inclusion of such Bank’s 's Commitment and on such date date, such Bank shall purchase at par such of the Loans of the other Banks as the Administrative Agent shall determine may be necessary in order for such Bank to hold such Loans in accordance with its Pro Rata Share of the Aggregate Commitment; provided, that if the Company cash collateralized any portion of such Defaulting Bank’s Pro Rata Share of the LC Obligations pursuant to Section 4.7(c), such cash shall be returned to the CompanyRatable Share.
Appears in 1 contract
Defaulting Banks. Notwithstanding any provision of this Agreement to the contrary, if If any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Commitment Fees shall cease to accrue on the unfunded portion of neither the Commitment of such Defaulting Bank pursuant to Section 2.5(a);
(b) nor the Commitment and Outstanding Credit Exposure Loans of such Defaulting Bank shall not be included in determining whether all Banks or the Majority Required Banks have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.19.05); providedprovided that any waiver, that, except as otherwise provided in Section 10.1, this clause (b) shall not apply to the vote of a Defaulting Bank in the case of an amendment, waiver amendment or other modification requiring the consent of all Banks which affects such Defaulting Bank differently than other affected Banks shall require the consent of such Defaulting Bank; provided, further that no waiver, amendment or each modification of the type described in clauses (a)(i), (ii) or (iii) of Section 9.05 may be made without the written consent of any Defaulting Bank directly affected thereby;
(cb) the Company may, at its sole expense, upon notice to such Defaulting Bank and the Administrative Agent, require such Defaulting Bank to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in Section 9.06, with the Company or the replacement Bank paying the processing and recording fee), all of its interests, rights and obligations under this Agreement to an Assignee that shall assume such obligations (which Assignee may be another Bank, if any LC Obligations exist at the time a Bank becomes a Defaulting Bank then:
accepts such assignment); provided that (i) so long as no Default or Event the Company shall have received the prior written consent of Default shall be continuing immediately before or after giving effect the Administrative Agent to such reallocation, all or any part of such LC Obligation shall be reallocated among the non-Defaulting Banks in accordance with their respective Pro Rata Share but only assignment (to the extent that (x) the sum of all non-Defaulting Banks’ Outstanding Credit Exposure does such consent would otherwise be required pursuant to Section 9.06), which consent shall not exceed the total of all non-Defaulting Banks’ Commitmentsunreasonably be withheld, (y) no Bank’s Outstanding Credit Exposure shall exceed its Commitment delayed or conditioned, and (zii) such Defaulting Bank shall have received payment of an amount equal to the conditions set forth in Section 11.2 are satisfied at outstanding principal of its Loans, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the Assignee (to the extent of such timeoutstanding principal and accrued interest and fees) or the Company;
(iic) if facility fees shall cease to accrue on the reallocation described in subclause (i) above cannot, or can only partially, be effected, the Company shall within one (1) Business Day following notice by the Agent, cash collateralize for the benefit unused portion of the relevant LC Issuer such Defaulting Bank’s Pro Rata Share Commitment of the LC Obligations (after giving effect to any partial reallocation pursuant to subclause (i) above) in accordance with the procedures set forth in Section 9.2 for so long as such LC Obligation is outstanding;
(iii) if the Company cash collateralizes any portion of such Defaulting Bank’s Pro Rata Share of the LC Obligations pursuant this clause (c), the Company shall not be required to pay any fees to such Defaulting Bank pursuant to Section 3.4 with respect 2.08;
(d) notwithstanding any contrary provision in this Agreement, the Company may (i) prepay, without penalty or premium, the Loans made by a Defaulting Bank and (ii) terminate the unused amount of the Commitment of a Defaulting Bank, in each case, (x) without pro rata prepayment of Loans of other Banks or pro rata termination of Commitments of other Banks and (y) upon not less than two Business Days’ prior notice to the Administrative Agent (which will promptly notify the Banks thereof), it being understood that such prepayment and termination will not be deemed to be a waiver or release of any claim the Company or the Administrative Agent may have against such Defaulting Bank’s Pro Rata Share of the LC Obligations during the period such Defaulting Bank’s Pro Rata Share of the LC Obligations is cash collateralized;; and
(ive) if the non-Defaulting Banks’ Pro Rata Share of the LC Obligations is reallocated pursuant to nothing in this clause (c), then the fees payable to the Banks pursuant to Section 2.5(a) and Section 3.4 shall be adjusted in accordance with such non-Defaulting Banks’ Pro Rata Shares; or
(v) if any Defaulting Bank’s Pro Rata Share of the LC Obligations is neither reallocated nor cash collateralized pursuant to this clause (c), then, without prejudice to affect any rights or remedies of the Company may have against any LC Issuer or any Bank hereunder, all fees that otherwise would have been payable to such Defaulting Bank (solely with respect to the portion of such Defaulting Bank’s Commitment that was utilized by such LC Obligations) and LC Fees payable under Section 3.4 with respect to such Defaulting Bank’s Pro Rata Share of the LC Obligations shall be payable to the applicable LC Issuer until such Defaulting Bank’s Pro Rata Share of the LC Obligation is cash collateralized and/or reallocated; and
(d) so long as any Bank is a Defaulting Bank, no LC Issuer shall be required to issue or Modify any Facility LC, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Banks and/or cash collateral will be provided by the Company in accordance with clause (c) above, and participating interests in any such newly issued or Modified Facility LC shall be allocated among non-Defaulting Banks in a manner consistent with clause(c)(i) above (and Defaulting Banks shall not participate therein).
(e) If (i) a Bankruptcy Event with respect to a Parent of any Bank shall occur following the date hereof and for so long as such event shall continue or (ii) any LC Issuer has a good faith belief that any Bank has defaulted in fulfilling its obligations under one or more other agreements in which such Bank commits to extend credit, such LC Issuer shall not be required to issue, amend or increase any Facility LC, unless such LC Issuer, as the case may be, shall have entered into arrangements with the Company or such Bank, satisfactory to such LC Issuer, as the case may be, to defease any risk to it in respect of such Bank hereunder.
(f) . In the event and on the date that the Agent, Administrative Agent and the Company, and Company each LC Issuer each agrees agree that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the Banks’ Pro Rata Shares of the LC Obligations shall be readjusted to reflect the inclusion of such Bank’s Commitment and on such date such Bank shall purchase at par such of the Loans of the other Banks as the Administrative Agent shall determine may be necessary in order for such Bank to hold such Loans in accordance with its Pro Rata Share of the Aggregate Commitment; provided, that if the Company cash collateralized any portion of Commitment and such Bank shall no longer be a Defaulting Bank’s Pro Rata Share of the LC Obligations . Each party hereto agrees that (a) an assignment required pursuant to Section 4.7(c)2.16(b) may be effected pursuant to an Assignment and Assumption executed by the Company, the Administrative Agent and the assignee and (b) the Bank required to make such cash assignment need not be a party thereto in order for such assignment to be effective and shall be returned deemed to have consented to and be bound by the Companyterms thereof; provided that, following the effectiveness of any such assignment, the other parties to such assignment agree to execute and deliver such documents necessary to evidence such assignment as reasonably requested by the applicable Bank, provided, further that any such documents shall be without recourse to or warranty by the parties thereto.
Appears in 1 contract
Sources: Five Year Credit Agreement (Rockwell Automation, Inc)
Defaulting Banks. (a) Notwithstanding any provision of this Agreement to the contrary, if any Bank becomes a one or more Revolving Banks become Defaulting BankBanks, then the following provisions shall apply for so long as any such Bank is a Defaulting Bank:
(ai) Commitment Fees no commitment fee shall cease to accrue on the unfunded portion unused amount of the any Revolving Commitment of such any Defaulting Bank pursuant to Section 2.5(a2.8(a);
(bii) the Commitment Revolving Commitments and Outstanding Credit Exposure Revolving Exposures of such each Defaulting Bank shall not be included disregarded in determining whether the Majority Required Revolving Banks, Required Banks or any other requisite Banks shall have taken or may take any action hereunder or under any other Loan Document (including any consent to any waiver, amendment or waiver other modification pursuant to Section 10.19.5); provided that any waiver, amendment, or other modification that, disregarding the effect of this clause (ii), requires the consent of each Bank directly affected thereby pursuant to clause (1)(a), (1)(b), (1)(c) or (1)(d) of Section 9.5 shall continue to require the consent of each Defaulting Bank directly affected thereby in accordance with the terms hereof; provided, thatfurther, except as otherwise provided in that any waiver, amendment or other modification of this Section 10.1, this 2.20(a)(ii) or clause (b1)(a), (1)(b), (1)(c) shall not apply to the vote or (1)(d) of Section 9.5 at any time that a Bank is a Defaulting Bank in the case of an amendment, waiver or other modification requiring shall require the consent of such Defaulting Bank or each if such Defaulting Bank would be directly adversely affected thereby;
(c1) in the case of a Defaulting Bank that is a Dollar Revolving Bank, if any Dollar LC Obligations exist Exposure or Swingline Exposure exists at the time a such Dollar Revolving Bank becomes a Defaulting Bank or (2) in the case of a Defaulting Bank that is a Multi-Currency Revolving Bank, if any Multi-Currency LC Exposure exists at the time such Multi-Currency Bank becomes a Defaulting Bank (each Swingline Loan to which such Swingline Exposure is attributable being referred to as a “Reallocated Swingline Loan” and each Letter of Credit to which such LC Exposure is attributable being referred to as a “Reallocated Letter of Credit”), then:
(iA) so long as no Default subject to clause (B) below, the participation of each Non-Defaulting Bank of such Class in each Reallocated Swingline Loan (if applicable) or Event Reallocated Letter of Default Credit of such Class shall be continuing immediately before adjusted to be determined under Section 2.18(d) or 2.23 on the basis of such Revolving Bank’s Adjusted Dollar Applicable Percentage or Adjusted Multi-Currency Applicable Percentage, as the case may be (and all references in Section 2.18 or 2.23 to “Dollar Applicable Percentage” or “Multi-Currency Applicable Percentage” shall be deemed to be references to “Adjusted Dollar Applicable Percentage” or “Adjusted Multi-Currency Applicable Percentage”, as the case may be);
(B) notwithstanding the foregoing:
(1) if any Revolving Bank that becomes a Defaulting Bank shall be the Swingline Bank or an Issuing Bank or an Affiliate thereof, no adjustment shall be made pursuant to clause (A) above with respect to participations in any Swingline Loan made by the Swingline Bank or any Letter of Credit issued by such Issuing Bank, as the case may be;
(2) if all the Defaulting Banks’ Applicable Percentage of the LC Exposure of any Class attributable to the Reallocated Letters of Credit of such Class (the “Defaulting Bank LC Exposure”) and, in the case of Dollar Revolving Banks, the Swingline Exposure attributable to the Reallocated Swingline Loans (the “Defaulting Bank Swingline Exposure”) collectively exceed the unused portion of the Revolving Commitments of the Non-Defaulting Banks of such Class as of the time the adjustments are to be made pursuant to clause (A) above (any such unused portion being referred to as the “Maximum Incremental Participation Amount”), then the incremental amount of participations in Letters of Credit of such Class and, in the case of Dollar Revolving Banks, Swingline Loans acquired by the Non-Defaulting Banks under clause (A) above (the “Incremental Participations”) shall not exceed at any time the Maximum Incremental Participation Amount with respect to such Class;
(3) adjustments under Section 2.20(a)(iii)(A) and (B) above shall only be made to the extent that, after giving effect to such reallocationadjustments, all the Revolving Exposure of any Non-Defaulting Bank with respect to any Class shall not exceed its Revolving Commitment with respect to such Class; and
(4) no adjustment shall be made under Section 2.20(a)(iii)(A) or (B) above if, at the time such adjustment is made, an Event of Default has occurred and is continuing;
(C) if the Defaulting Bank LC Exposure with respect to any part Class and Defaulting Bank Swingline Exposure (in the case of Dollar Revolving Banks) collectively exceed the Maximum Incremental Participation Amount with respect to such Class, then the applicable Borrower or applicable Additional Borrower shall, within five Domestic Business Days after receipt of written notice to that effect from the Administrative Agent, cash collateralize the Reallocated Letters of Credit of such Class and, in the case of Dollar Revolving Banks, prepay the Reallocated Swingline Loans (in a manner and under documentation reasonably satisfactory to the Administrative Agent) in an aggregate amount equal to the excess, if any, of the Defaulting Bank LC Obligation Exposure of such Class and, in the case of Dollar Revolving Banks, Defaulting Bank Swingline Exposure over the Maximum Incremental Participation Amount of such Class or, if agreed to by the applicable Issuing Bank and/or Swingline Bank, enter into other arrangements with respect to the Reallocated Letters of Credit of such Class or Reallocated Swingline Loans on terms mutually agreed between such Issuing Bank or the Swingline Bank, on the one hand, and the applicable Borrower or applicable Additional Borrower, on the other hand;
(D) if any Reallocated Letter of Credit shall have been cash collateralized by the applicable Borrower or applicable Additional Borrower pursuant to clause (C) above, then (x) the applicable Borrower or applicable Additional Borrower shall not be required to pay any letter of credit participation fees pursuant to Section 2.8(b) with respect to the portion of such Reallocated Letter of Credit that is so cash collateralized and (y) to the extent any letter of credit participation fees are not required to be paid by reason of clause (x) above, the reduction in the amount of such fees shall be reallocated among allocated to the nonDefaulting Banks;
(E) if an adjustment shall have been made pursuant to clause (A) above to the participations of the Non-Defaulting Banks in Reallocated Letters of Credit of any Class, then the letter of credit participation fees that would otherwise have been payable to the Revolving Banks that are Defaulting Banks pursuant to Section 2.8(b) with respect to the portion of such Reallocated Letters of Credit of such Class equal to the Incremental Participations therein shall instead accrue for the accounts of, and be payable to, the Revolving Banks of such Class that are Non-Defaulting Banks in accordance with their respective Pro Rata Share but only Adjusted Dollar Applicable Percentages or Adjusted Multi-Currency Applicable Percentages, as the case may be;
(F) if the Defaulting Bank LC Exposure with respect to the extent that (x) any Class at any time shall exceed the sum of all non-Defaulting Banks’ Outstanding the Incremental Participations in respect of Letters of Credit Exposure does not exceed the total of all non-Defaulting Banks’ Commitments, (y) no Bank’s Outstanding Credit Exposure shall exceed its Commitment and (z) the conditions set forth in Section 11.2 are satisfied such Class at such time;
(ii) if time and the reallocation described in subclause (i) above cannot, or can only partially, be effected, the Company shall within one (1) Business Day following notice by the Agent, cash collateralize for the benefit portion of the relevant LC Issuer Reallocated Letters of Credit of such Defaulting Bank’s Pro Rata Share of the LC Obligations (after giving effect to any partial reallocation Class cash collateralized at such time pursuant to subclause clause (iC) above) in accordance with the procedures set forth in Section 9.2 for so long as such LC Obligation is outstanding;
(iii) if the Company cash collateralizes any portion of such Defaulting Bank’s Pro Rata Share of the LC Obligations pursuant this clause (c), the Company shall not be required to pay any fees to such Defaulting Bank pursuant to Section 3.4 with respect to such Defaulting Bank’s Pro Rata Share of the LC Obligations during the period such Defaulting Bank’s Pro Rata Share of the LC Obligations is cash collateralized;
(iv) if the non-Defaulting Banks’ Pro Rata Share of the LC Obligations is reallocated pursuant to this clause (c), then the fees payable to the Banks pursuant to Section 2.5(a) and Section 3.4 shall be adjusted in accordance with such non-Defaulting Banks’ Pro Rata Shares; or
(v) if any Defaulting Bank’s Pro Rata Share of the LC Obligations is neither reallocated nor cash collateralized pursuant to this clause (c), then, without prejudice to any rights or remedies of any LC Issuer Issuing Bank or any Non-Defaulting Bank hereunder, all letter of credit participation fees that otherwise would have been payable to the Revolving Banks of such Class that are Defaulting Bank (solely Banks under Section 2.8(b) with respect to the portion of the Defaulting Bank LC Exposure of such Class equal to such excess shall instead accrue for the account of, and be payable to, the applicable Issuing Bank that shall have issued the Reallocated Letters of Credit of such Class; and
(G) the Revolving Exposure of each Non-Defaulting Bank’s Commitment that was utilized Bank with respect to any Class shall be determined after giving effect to the Incremental Participations acquired by such LC Obligations) and LC Fees payable under Section 3.4 Revolving Bank with respect to such Defaulting Bank’s Pro Rata Share Class under the foregoing clauses of this clause (iii);
(1) in the event any (x) Letter of Credit shall be issued or amended to increase the amount thereof or (y) in the case of Dollar Revolving Banks, Swingline Loan shall be made, (A) the participations of the LC Obligations Non-Defaulting Banks of such Class therein shall be determined in the manner set forth in clause (iii)(A) above, as if such Letter of Credit of such Class or Swingline Loan shall have been a Reallocated Letter of Credit of such Class or a Reallocated Swingline Loan, as the case may be, and (B) letter of credit participation fees that would otherwise have been payable to the applicable LC Issuer until Revolving Banks of such Class that are Defaulting Bank’s Pro Rata Share Banks pursuant to Section 2.8(b) in respect of any such Letter of Credit shall be subject to Section 2.20(a)(iii)(E) above; provided, however, that, notwithstanding anything to the LC Obligation is cash collateralized and/or reallocated; and
(d) so long as any Bank is a Defaulting Bankcontrary set forth herein, no LC Issuer Issuing Bank of such Class or Swingline Bank shall be required to issue issue, extend, renew or Modify increase the amount of any Facility LCLetter of Credit of such Class or make any Swingline Loan, as applicable, unless it is satisfied that the related exposure Defaulting Banks’ Dollar Applicable Percentage or Multi-Currency Applicable Percentage, as applicable, of the LC Exposure with respect to such Class or Swingline Exposure, as applicable, attributable to such Letter of Credit or Swingline Loan, as applicable, will be 100% entirely covered by the Commitments participations therein of the nonNon-Defaulting Banks and/or cash collateral will be or other arrangements satisfactory to such Issuing Bank or Swingline Bank provided by the Company in accordance with clause applicable Borrower or applicable Additional Borrower (c) above, and participating interests in any such newly issued or Modified Facility LC shall be allocated among non-Defaulting Banks in a manner consistent with clause(c)(i) above (and Defaulting Banks shall not participate therein).
(e) If (i) a Bankruptcy Event with respect to a Parent of any Bank shall occur following the date hereof and for so long as such event shall continue or (ii) any LC Issuer has a good faith belief that any Bank has defaulted in fulfilling its obligations under one or more other agreements in which such Bank commits to extend credit, such LC Issuer shall not be required to issue, amend or increase any Facility LC, unless such LC Issuer, as the case may be, shall have entered into arrangements with the Company or such Bank, documentation satisfactory to such LC IssuerIssuing Bank or Swingline Bank, as applicable); and
(2) any amount payable to or for the case account of any Defaulting Bank in its capacity as a Bank hereunder (whether on account of principal, interest, fees or otherwise, and including any amounts payable to such Defaulting Bank pursuant to Sections 2.10 and 2.11, but excluding any amounts payable to such Defaulting Bank pursuant to Sections 2.13, 2.15, 2.17, 8.3 and 9.3) shall, in lieu of being distributed to such Defaulting Bank, be retained by the Administrative Agent in a segregated account and, subject to any applicable requirements of law, (A) be applied, at such time or times as may bebe determined by the Administrative Agent, (1) first, to defease the payment of any risk amounts owing by such Defaulting Bank to it the Administrative Agent hereunder, (2) second to the payment on a pro rata basis of any amounts owing by such Defaulting Bank to each Issuing Bank and Swingline Bank in respect of such Defaulting Bank’s participations in Letters of Credit and Swingline Loans (and to the extent any such amounts shall have been paid by Non-Defaulting Banks as a result of adjustments pursuant to clause (iii) above, to reimburse such Non-Defaulting Banks for such amounts), (3) third, to cash collateralize participation obligations of such Defaulting Bank in respect of outstanding Letters of Credit (with the concurrent release of an equivalent amount any cash collateral or other collateral security, if any, provided by the applicable Borrower pursuant to this Section) and prepay Swingline Loans on a pro rata basis and (4) fourth, to the funding of such Defaulting Bank’s Applicable Percentage of any Revolving Borrowing in respect of which such Defaulting Bank shall have failed to fund such share as required hereunder, (B) to the extent not applied as aforesaid, be held, if so determined by the Administrative Agent, as cash collateral for funding obligations of such Defaulting Bank in respect of future Loans hereunder, (C) to the extent not applied or held as aforesaid, be applied, pro rata, to the payment of any amounts owing to any Borrower or the Non-Defaulting Banks as a result of any judgment of a court of competent jurisdiction obtained by any Borrower or any Non-Defaulting Bank against such Defaulting Bank as a result of such Defaulting Bank’s breach of its obligations hereunder and (D) to the extent not applied or held as aforesaid, be distributed to such Defaulting Bank or as otherwise directed by a court of competent jurisdiction.
(fb) In the event that the Administrative Agent, the CompanyIssuing Banks of such Class, the Swingline Bank (solely in the case of Defaulting Banks that are Dollar Revolving Banks) and each LC Issuer each agrees the Borrowers shall have agreed that a Revolving Bank that is a Defaulting Bank has adequately remedied all matters that caused such Revolving Bank to be become a Defaulting Bank, then (i) such Revolving Bank shall cease to be a Defaulting Bank for all purposes hereof, (ii) the Banks’ Pro Rata Shares obligations of the LC Obligations Revolving Banks to purchase participations in Letters of Credit under Section 2.18(d) and Swingline Loans under Section 2.23 shall be readjusted to reflect be determined on the inclusion basis of such Bank’s Commitment Revolving Banks’ Dollar Applicable Percentages or Multi-Currency Applicable Percentages, as the case may be, and on (iii) such date such Revolving Bank shall purchase at par such of the Revolving Loans of the other Revolving Banks as the Administrative Agent shall determine may to be necessary in order for such Bank the Revolving Loans to hold such Loans be held by the Revolving Banks in accordance with their Dollar Applicable Percentages or Multi-Currency Applicable Percentages, as the case may be.
(c) No Revolving Commitment of any Revolving Bank shall be increased or otherwise affected and, except as otherwise expressly provided in this Section, performance by any Borrower or any Additional Borrower of its Pro Rata Share obligations hereunder and under the other Loan Documents shall not be excused or otherwise modified as a result of the Aggregate Commitment; providedoperation of this Section. The rights and remedies against a Defaulting Bank under this Section are in addition to other rights and remedies that any Borrower, that if any Additional Borrower, the Company cash collateralized Administrative Agent, the Issuing Banks, the Swingline Bank or any portion of Non-Defaulting Bank may have against such Defaulting Bank’s Pro Rata Share Bank (and, for the avoidance of doubt, each Non-Defaulting Bank shall have a claim against any Defaulting Bank for any losses it may suffer as a result of the LC Obligations pursuant to Section 4.7(coperation of this Section), such cash shall be returned to the Company.
Appears in 1 contract
Sources: Credit Agreement (Allegion PLC)
Defaulting Banks. Notwithstanding any provision of this Agreement to the contrary, if any Bank becomes a Defaulting Bank, then the Administrative Agent shall deliver written notice to such effect, upon the Administrative Agent’s obtaining knowledge of such event, to the Company and such Defaulting Bank, and the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Commitment Fees shall cease to accrue on the unfunded portion of with respect to the Commitment of such Defaulting Bank pursuant to Section 2.5(a);2.5.
(b) the The Commitment and Outstanding Revolving Credit Exposure of such Defaulting Bank shall not be included in determining whether all Banks or the Majority Banks have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.19.1); provided, thatprovided that any waiver, except as otherwise provided in Section 10.1, this clause (b) shall not apply to the vote of a Defaulting Bank in the case of an amendment, waiver amendment or other modification requiring the consent of such Bank all Banks or each affected Bank directly which affects such Defaulting Bank differently than other affected thereby;Banks shall require the consent of such Defaulting Bank.
(c) if If any LC L/C Obligations exist at the time a Bank becomes a Defaulting Bank Bank, then:
(i) so long as no Default or Event of Default shall be continuing immediately before or after giving effect to such reallocation, all or any part of such LC Obligation L/C Obligations shall be reallocated among the non-Defaulting Banks ratably in accordance with their respective Pro Rata Share Commitments but only to the extent that (x) the sum of all non-Defaulting Banks’ Outstanding Revolving Credit Exposure Exposures does not then exceed the total of all non-Defaulting Banks’ Commitments, Commitments and (y) no Bank’s Outstanding Credit Exposure shall exceed its Commitment and (z) the conditions set forth in Section 11.2 4.4 are satisfied at such time;
(ii) if the reallocation described in subclause clause (i) above cannot, or can only partially, be effected, the Company shall within one (1) Business Day following notice by the Agent, Administrative Agent cash collateralize for the benefit of the relevant LC Issuer percentage such Defaulting Bank’s Pro Rata Share Commitment represents of the LC Total Commitment of the L/C Obligations (after giving effect to any partial reallocation pursuant to subclause clause (i) above) in accordance with the procedures set forth in Section 9.2 7.2 for so long as such LC Obligation is L/C Obligations are outstanding;
(iii) if the Company cash collateralizes any portion of such Defaulting Bank’s Pro Rata Share of the LC L/C Obligations pursuant to this clause (cSection 2.23(c), the Company shall not be required to pay any fees to such Defaulting Bank pursuant to Section 3.4 3.3 with respect to such Defaulting Bank’s Pro Rata Share portion of the LC L/C Obligations during the period of such Defaulting Bank’s Pro Rata Share of the LC Obligations is cash collateralizedcollateralization;
(iv) if the L/C Obligations of the non-Defaulting Banks’ Pro Rata Share of the LC Obligations is Banks are reallocated pursuant to this clause (cSection 2.23(c), then the fees payable to the Banks pursuant to Section 2.5(a) and Section 3.4 3.3 shall be adjusted ratably in accordance with such non-Defaulting Banks’ Pro Rata Sharestheir respective Commitments; orand
(v) if any Defaulting Bank’s Pro Rata Share of the LC L/C Obligations is are neither reallocated nor cash collateralized nor reallocated pursuant to this clause (cSection 2.23(c), then, without prejudice to any rights or remedies of any LC Issuer the applicable Issuing Bank or any Bank hereunder, all fees Commitment Fees that otherwise would have been payable to such Defaulting Bank (solely with respect to the portion of such Defaulting Bank’s Commitment that was utilized by such LC L/C Obligations) and LC Fees letter of credit fees payable under Section 3.4 3.3 with respect to such Defaulting Bank’s Pro Rata Share of the LC L/C Obligations shall be payable to the applicable LC Issuer Issuing Bank until such Defaulting Bank’s Pro Rata Share of the LC Obligation is L/C Obligations are cash collateralized and/or reallocated; and.
(d) so So long as any Bank is a Defaulting Bank, no LC Issuer the Issuing Bank shall not be required to issue issue, amend or Modify increase any Facility LCLetter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Banks and/or cash collateral will be provided by the Company in accordance with clause (c) abovethis Section 2.23(c), and participating interests in any such newly issued or Modified Facility LC increased Letter of Credit shall be allocated among non-Defaulting Banks in a manner consistent with clause(c)(iSection 2.23(c)(i) above (and Defaulting Banks shall not participate therein).
(e) If Any amount payable to such Defaulting Bank hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Bank pursuant to Section 2.17, but excluding amounts payable pursuant to Section 2.24) shall, in lieu of being distributed to such Defaulting Bank, subject to any applicable requirements of law, be applied at such time or times as may be determined by the Administrative Agent (i) first, to the payment of any amounts owing by such Defaulting Bank to the Administrative Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Bank to the Issuing Bank hereunder, (iii) third, if so determined by the Administrative Agent or requested by an Issuing Bank, held in such account as cash collateral for future funding obligations of the Defaulting Bank in respect of any existing or future participating interest in any Letter of Credit, (iv) fourth, to the funding of any Loan in respect of which such Defaulting Bank has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (v) fifth, if so determined by the Administrative Agent and the Company, held in such account as cash collateral for future funding obligations of the Defaulting Bank in respect of any Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Banks or an Issuing Bank as a Bankruptcy Event result of any judgment of a court of competent jurisdiction obtained by any Bank or such Issuing Bank against such Defaulting Bank as a result of such Defaulting Bank’s breach of its obligations under this Agreement, (vii) seventh, 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 Bank as a result of such Defaulting Bank’s breach of its obligations under this Agreement, and (viii) eighth, to such Defaulting Bank or as otherwise directed by a court of competent jurisdiction, provided, with respect to this clause (viii), that if such payment is (x) a Parent prepayment of the principal amount of any Bank shall occur following the date hereof and for so long as such event shall continue Loans or (ii) any LC Issuer has a good faith belief that any Bank has defaulted in fulfilling its reimbursement obligations under one or more other agreements in which such Bank commits to extend credit, such LC Issuer shall not be required to issue, amend or increase any Facility LC, unless such LC Issuer, as the case may be, shall have entered into arrangements with the Company or such Bank, satisfactory to such LC Issuer, as the case may be, to defease any risk to it in respect of any drafts paid by an Issuing Bank under any Letters of Credit which a Defaulting Bank has funded its participation obligations and (y) made at a time when the conditions set forth in Section 4.4 are satisfied, such Bank hereunder.
(f) payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Banks pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Bank. In the event that the Administrative Agent, the Company, Issuing Bank and each LC Issuer the Company each agrees that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank or upon receipt by the Administrative Agent of the confirmation referred to in clause (c) of the definition of “Defaulting Bank”, as applicable, then the Banks’ Pro Rata Shares of the LC Obligations shall be readjusted to reflect the inclusion of such Bank’s Commitment and on such date such Bank shall purchase at par such portion of the Loans of the other Banks (other than Competitive Loans) as the Administrative Agent shall determine may be necessary in order for such Bank to hold such Loans ratably in accordance with its Pro Rata Share of the Aggregate Commitment; provided, that if the Company cash collateralized any portion of such Defaulting Bank’s Pro Rata Share of the LC Obligations pursuant to Section 4.7(c), such cash shall be returned to the Company.
Appears in 1 contract
Sources: Competitive Advance and Revolving Credit Facility Agreement (Southwest Airlines Co)
Defaulting Banks. Notwithstanding any provision of this Agreement to the contrary, if If any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Commitment Fees shall cease to accrue on the unfunded portion of neither the Commitment of such Defaulting Bank pursuant to Section 2.5(a);
(b) nor the Commitment and Outstanding Credit Exposure Loans of such Defaulting Bank shall not be included in determining whether all Banks or the Majority Required Banks have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.19.05); providedprovided that any waiver, that, except as otherwise provided in Section 10.1, this clause (b) shall not apply to the vote of a Defaulting Bank in the case of an amendment, waiver amendment or other modification requiring the consent of all Banks which affects such Defaulting Bank differently than other affected Banks shall require the consent of such Defaulting Bank; provided further that no waiver, amendment or each modification of the type described in clause (i), (ii) or (iii) of Section 9.05 may be made without the written consent of any Defaulting Bank directly affected thereby;
(cb) the Company may, at its sole expense, upon notice to such Defaulting Bank and the Administrative Agent, require such Defaulting Bank to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in Section 9.06, with the Company or the replacement Bank paying the processing and recording fee), all of its interests, rights and obligations under this Agreement to an Assignee that shall assume such obligations (which Assignee may be another Bank, if any LC Obligations exist at the time a Bank becomes a Defaulting Bank then:
accepts such assignment); provided that (i) so long as no Default or Event the Company shall have received the prior written consent of Default shall be continuing immediately before or after giving effect the Administrative Agent to such reallocation, all or any part of such LC Obligation shall be reallocated among the non-Defaulting Banks in accordance with their respective Pro Rata Share but only assignment (to the extent that (x) the sum of all non-Defaulting Banks’ Outstanding Credit Exposure does such consent would otherwise be required pursuant to Section 9.06), which consent shall not exceed the total of all non-Defaulting Banks’ Commitmentsunreasonably be withheld, (y) no Bank’s Outstanding Credit Exposure shall exceed its Commitment and (zii) such Defaulting Bank shall have received payment of an amount equal to the conditions set forth in Section 11.2 are satisfied at outstanding principal of its Loans, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the Assignee (to the extent of such timeoutstanding principal and accrued interest and fees) or the Company;
(iic) if facility fees shall cease to accrue on the reallocation described in subclause (i) above cannot, or can only partially, be effected, the Company shall within one (1) Business Day following notice by the Agent, cash collateralize for the benefit unused portion of the relevant LC Issuer such Defaulting Bank’s Pro Rata Share Commitment of the LC Obligations (after giving effect to any partial reallocation pursuant to subclause (i) above) in accordance with the procedures set forth in Section 9.2 for so long as such LC Obligation is outstanding;
(iii) if the Company cash collateralizes any portion of such Defaulting Bank’s Pro Rata Share of the LC Obligations pursuant this clause (c), the Company shall not be required to pay any fees to such Defaulting Bank pursuant to Section 3.4 with respect 2.08;
(d) notwithstanding any contrary provision in this Agreement, the Company may (i) prepay, without penalty or premium, the Loans made by a Defaulting Bank and (ii) terminate the unused amount of the Commitment of a Defaulting Bank, in each case, (x) without pro rata prepayment of Loans of other Banks or pro rata termination of Commitments of other Banks and (y) upon not less than two Business Days’ prior notice to the Administrative Agent (which will promptly notify the Banks thereof), it being understood that such prepayment and termination will not be deemed to be a waiver or release of any claim the Company or the Administrative Agent may have against such Defaulting Bank’s Pro Rata Share of the LC Obligations during the period such Defaulting Bank’s Pro Rata Share of the LC Obligations is cash collateralized;; and
(ive) if the non-Defaulting Banks’ Pro Rata Share of the LC Obligations is reallocated pursuant to nothing in this clause (c), then the fees payable to the Banks pursuant to Section 2.5(a) and Section 3.4 shall be adjusted in accordance with such non-Defaulting Banks’ Pro Rata Shares; or
(v) if any Defaulting Bank’s Pro Rata Share of the LC Obligations is neither reallocated nor cash collateralized pursuant to this clause (c), then, without prejudice to affect any rights or remedies of the Company may have against any LC Issuer or Defaulting Bank. The Administrative Agent shall provide to any Bank hereunder, all fees that otherwise would have been payable to such Defaulting Bank (solely with respect to the portion of such Defaulting Bank’s Commitment that was utilized by such LC Obligations) and LC Fees payable under Section 3.4 with respect to such Defaulting Bank’s Pro Rata Share of the LC Obligations shall be payable to the applicable LC Issuer until such Defaulting Bank’s Pro Rata Share of the LC Obligation is cash collateralized and/or reallocated; and
(d) so long as any Bank is a Defaulting Bank, no LC Issuer shall be required to issue or Modify any Facility LC, unless it is satisfied that the related exposure will be 100% covered determined by the Commitments of the non-Defaulting Banks and/or cash collateral will be provided by the Company in accordance with clause (c) above, and participating interests in any such newly issued or Modified Facility LC shall be allocated among non-Defaulting Banks in a manner consistent with clause(c)(i) above (and Defaulting Banks shall not participate therein).
(e) If (i) a Bankruptcy Event with respect to a Parent of any Bank shall occur following the date hereof and for so long as such event shall continue or (ii) any LC Issuer has a good faith belief that any Bank has defaulted in fulfilling its obligations under one or more other agreements in which such Bank commits to extend credit, such LC Issuer shall not be required to issue, amend or increase any Facility LC, unless such LC Issuer, as the case may be, shall have entered into arrangements with the Company or such Bank, satisfactory to such LC Issuer, as the case may be, to defease any risk to it in respect of such Bank hereunder.
(f) In the event that the Agent, the Company, and each LC Issuer each agrees that a Defaulting Bank has adequately remedied all matters that caused such Bank Administrative Agent to be a Defaulting Bank, then the Banks’ Pro Rata Shares of the LC Obligations shall be readjusted to reflect the inclusion Bank notice of such Bank’s Commitment determination (and on such date such Bank shall purchase at par such of the Loans of the other Banks as the Agent shall determine may be necessary in order for such Bank to hold such Loans in accordance with its Pro Rata Share of the Aggregate Commitment; provided, that if the Company cash collateralized any portion provide a copy of such Defaulting Bank’s Pro Rata Share of the LC Obligations pursuant to Section 4.7(c), such cash shall be returned notice to the Company).
Appears in 1 contract
Defaulting Banks. Notwithstanding any provision of this Agreement or any other Loan Document to the contrary, if any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Commitment Ticking Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Bank pursuant to Section 2.5(a3.2(b);; and
(b) the Commitment and Outstanding Extensions of Credit Exposure of such Defaulting Bank shall not be included in determining whether all Banks (or each Bank) or the Majority Banks have taken or may take any action hereunder (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 10.1); provided, that, except as otherwise provided in Section 10.1, that this clause (b) shall not apply to the vote of a Defaulting Bank in the case of an amendment, waiver or other modification requiring the consent of such Bank or each Bank directly affected thereby;
(c) thereby if such Bank is an affected Bank; provided, further, that there shall not be any LC Obligations exist at the time a Bank becomes a Defaulting Bank then:
amendment, modification or waiver (i) so long as no Default or Event of Default shall be continuing immediately before or after giving effect to such reallocation, all or any part of such LC Obligation shall be reallocated among the non-Defaulting Banks in accordance with their respective Pro Rata Share but only to the extent that (x) the sum of all non-Defaulting Banks’ Outstanding Credit Exposure does not exceed the total of all non-Defaulting Banks’ Commitments, (y) no Bank’s Outstanding Credit Exposure shall exceed its Commitment and (z) the conditions set forth in Section 11.2 are satisfied at such time;
(ii) if the reallocation described in subclause (i) above cannot, or can only partially, be effected, the Company shall within one (1) Business Day following notice by the Agent, cash collateralize for the benefit of the relevant LC Issuer such Defaulting Bank’s Pro Rata Share of the LC Obligations (after giving effect to any partial reallocation pursuant to subclause (i) above) in accordance with the procedures set forth in Section 9.2 for so long as such LC Obligation is outstanding;
(iii) if the Company cash collateralizes any portion of such Defaulting Bank’s Pro Rata Share of the LC Obligations pursuant this clause (c), the Company shall not be required to pay any fees to such Defaulting Bank pursuant to Section 3.4 with respect to such Defaulting Bank’s Pro Rata Share of the LC Obligations during the period such Defaulting Bank’s Pro Rata Share of the LC Obligations is cash collateralized;
(iv) if the non-Defaulting Banks’ Pro Rata Share of the LC Obligations is reallocated pursuant to this clause (c), then the fees payable to the Banks pursuant to Section 2.5(a) and Section 3.4 shall be adjusted in accordance with such non-Defaulting Banks’ Pro Rata Shares; or
(v) if any Defaulting Bank’s Pro Rata Share of the LC Obligations is neither reallocated nor cash collateralized pursuant to this clause (c), then, without prejudice to any rights or remedies of any LC Issuer provision of Section 4.2 or any Bank hereunder, all fees that otherwise would have been payable to such Defaulting Bank (solely with respect to the portion of such Defaulting Bank’s Commitment that was utilized by such LC Obligations) and LC Fees payable under Section 3.4 with respect to such Defaulting Bank’s Pro Rata Share of the LC Obligations shall be payable to the applicable LC Issuer until such Defaulting Bank’s Pro Rata Share of the LC Obligation is cash collateralized and/or reallocated; and
(d) so long as any Bank is a Defaulting Bank, no LC Issuer shall be required to issue or Modify any Facility LC, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Banks and/or cash collateral will be provided by the Company in accordance with clause (c) above, and participating interests in any such newly issued or Modified Facility LC shall be allocated among non-Defaulting Banks 10.1 in a manner consistent with clause(c)(i) above (and Defaulting Banks shall not participate therein).
(e) If (i) a Bankruptcy Event with respect to a Parent that would alter the pro rata sharing of any Bank shall occur following the date hereof and for so long as such event shall continue payments required thereby, or (ii) causing the reduction of the percentage specified in the definition of Majority Banks, or (iii) causing the consent to the assignment or transfer by the Borrower of any LC Issuer has a good faith belief that any Bank has defaulted in fulfilling of its respective rights and obligations under one or more this Agreement and the other agreements Loan Documents, in which such Bank commits to extend credit, such LC Issuer shall not be required to issue, amend or increase any Facility LC, unless such LC Issuer, as each case without the case may be, shall have entered into arrangements with the Company or consent of such Bank, satisfactory to such LC Issuer, as . If the case may be, to defease any risk to it Borrower and the Administrative Agent agree in respect of such Bank hereunder.
(f) In the event that the Agent, the Company, and each LC Issuer each agrees writing in their sole discretion that a Defaulting Bank has adequately remedied all matters that caused such Bank should no longer be deemed to be a Defaulting Bank, then the Banks’ Pro Rata Shares Administrative Agent will so notify the parties hereto, whereupon that Bank will cease to be a Defaulting Bank; provided that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Bank to Bank will constitute a waiver or release of the LC Obligations shall be readjusted to reflect the inclusion any claim of such any party hereunder arising from that Bank’s Commitment having been a Defaulting Bank. The rights and on such date such remedies against, and with respect to, a Defaulting Bank shall purchase under this Section 2.4 are in addition to, and cumulative and not in limitation of, all other rights and remedies that the Administrative Agent and each Bank or the Borrower may at par such of the Loans of the other Banks as the Agent shall determine may be necessary in order for such Bank to hold such Loans in accordance any time have against, or with its Pro Rata Share of the Aggregate Commitment; providedrespect to, that if the Company cash collateralized any portion of such Defaulting Bank’s Pro Rata Share of the LC Obligations pursuant to Section 4.7(c), such cash shall be returned to the Company.
Appears in 1 contract
Sources: Term Loan Agreement (Centerpoint Energy Houston Electric LLC)
Defaulting Banks. (a) Notwithstanding any provision of this Agreement to the contrary, if any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(ai) Commitment Fees facility fees shall cease to accrue accrue, or to be payable by the Borrower, on the unfunded portion of the Commitment of such Defaulting Bank pursuant to Section 2.5(a)2.09(a) for the account of such Defaulting Bank or otherwise;
(bii) Letter of Credit Fees shall cease to accrue, or to be payable by the Borrower, on the Pro Rata Share of a Letter of Credit of such Defaulting Bank pursuant to Section 2.09(c) for the account of such Defaulting Bank or otherwise;
(iii) the Commitment and Outstanding or Credit Exposure of such Defaulting Bank shall not be included in determining whether all Banks or the Majority Required Banks have taken or may take any action hereunder (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 10.19.05); provided, thathowever, except as otherwise provided in Section 10.1, that this clause (biii) shall not (subject to Section 9.05) apply to the vote of a Defaulting Bank in the case of an amendment, waiver or other modification specifically requiring the consent of such Bank or each Bank directly affected thereby;thereby (and in circumstances where the consent of “all Banks” is required, such Defaulting Bank’s vote shall not be included except (A) such Defaulting Bank’s Commitment may not be increased or extended without its consent and (B) the principal amount of, or interest or fees payable on, Loans or L/C Borrowings may not be reduced or excused or the scheduled date of payment may not be postponed as to such Defaulting Bank without such Defaulting Bank’s consent); and
(civ) if any LC Obligations exist L/C AdvanceObligation exists at the time a such Bank becomes a Defaulting Bank then:
(iA) so long as provided that no Default or Event of Default shall be continuing immediately before or after giving effect to such reallocationexists, all or any part of the L/C Advance of such LC Obligation Defaulting Banksuch Defaulting Bank’s Pro Rata Share of the Outstanding Amount of all L/C Obligations shall be reallocated among the non-Defaulting Banks in accordance with their respective Pro Rata Share Shares but only to the extent that (x) the sum of the aggregate Outstanding Amount of theprincipal amount of Revolving Loans of all non-Defaulting Banks’ Banks’Bank’s plus such Defaulting Bank’s L/C Advance doesPro Rata Share of the Outstanding Credit Exposure does Amount of all L/C Obligations do not exceed the total of all non-Defaulting Banks’ Commitments, (y) no Bank’s Outstanding Credit Exposure shall exceed its Commitment and (z) the conditions set forth in Section 11.2 are satisfied at such time;
(iiB) if the reallocation described in subclause clause (iA) above cannot, or can only partially, be effected, the Company Borrower shall within one (1) Domestic Business Day following notice by the Agent, cash collateralize Administrative Agent Cash Collateralize for the benefit of the relevant LC Issuer Issuing Bank only the Borrower’s obligations corresponding to such Defaulting Bank’s Pro Rata Share of the LC Obligations Outstanding Amount of all L/C AdvanceObligations (after giving effect to any partial reallocation pursuant to subclause clause (i) above) in accordance with the procedures set forth in Section 9.2 2.20(e)(i) for so long as such LC Obligation is Advance isL/C Obligations are outstanding;
(iiiC) if the Company cash collateralizes Borrower Cash Collateralizes any portion of such Defaulting Bank’s Pro Rata Share of the LC Obligations L/C AdvanceObligations pursuant this to clause (c)B) above, the Company Borrower shall not be required to pay any fees to such Defaulting Bank pursuant to Section 3.4 2.09(c) with respect to such Defaulting Bank’s Pro Rata Share of the LC Obligations L/C AdvanceObligations during the period such Defaulting Bank’s Pro Rata Share of the LC Obligations is cash collateralizedL/C Advance isObligations are Cash Collateralized;
(ivD) if the L/C AdvancesObligations of the non-Defaulting Banks’ Pro Rata Share of the LC Obligations is Banks are reallocated pursuant to this clause (c)A) above, then the fees payable to the Banks pursuant to Section 2.5(a2.09(a) and Section 3.4 2.09(c) shall be adjusted in accordance with such non-Defaulting Banks’ Pro Rata Shares; orand
(vE) if all or any portion of such Defaulting Bank’s Pro Rata Share of the LC Obligations is L/C Advance isObligations are neither reallocated nor cash collateralized Cash Collateralized pursuant to this clause (c)A) or (B) above, then, without prejudice to any rights or remedies of any LC Issuer the Issuing Bank or any other Bank hereunder, all facility fees that otherwise would have been payable to such Defaulting Bank (solely with respect to the portion of such Defaulting Bank’s Commitment that was utilized by such LC ObligationsL/C AdvanceObligations) and LC Fees letter of credit fees payable under Section 3.4 2.09(c) with respect to such Defaulting Bank’s Pro Rata Share of the LC Obligations L/C AdvanceObligations shall be payable to the applicable LC Issuer Issuing Bank until and to the extent that such Defaulting Bank’s Pro Rata Share of the LC Obligation is cash collateralized L/C Advance isObligations are reallocated and/or reallocatedCash Collateralized; and
(d) so long as any Bank is a Defaulting Bank, no LC Issuer shall be required to issue or Modify any Facility LC, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Banks and/or cash collateral will be provided by the Company in accordance with clause (c) above, and participating interests in any such newly issued or Modified Facility LC shall be allocated among non-Defaulting Banks in a manner consistent with clause(c)(i) above (and Defaulting Banks shall not participate therein).
(e) If (i) a Bankruptcy Event with respect to a Parent of any Bank shall occur following the date hereof and for so long as such event shall continue or (ii) any LC Issuer has a good faith belief that any Bank has defaulted in fulfilling its obligations under one or more other agreements in which such Bank commits to extend credit, such LC Issuer shall not be required to issue, amend or increase any Facility LC, unless such LC Issuer, as the case may be, shall have entered into arrangements with the Company or such Bank, satisfactory to such LC Issuer, as the case may be, to defease any risk to it in respect of such Bank hereunder.
(f) In the event that the Agent, the Company, and each LC Issuer each agrees that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the Banks’ Pro Rata Shares of the LC Obligations shall be readjusted to reflect the inclusion of such Bank’s Commitment and on such date such Bank shall purchase at par such of the Loans of the other Banks as the Agent shall determine may be necessary in order for such Bank to hold such Loans in accordance with its Pro Rata Share of the Aggregate Commitment; provided, that if the Company cash collateralized any portion of such Defaulting Bank’s Pro Rata Share of the LC Obligations pursuant to Section 4.7(c), such cash shall be returned to the Company.
Appears in 1 contract
Sources: Revolving Credit Agreement (National Rural Utilities Cooperative Finance Corp /Dc/)
Defaulting Banks. (a) Notwithstanding any provision of this Agreement to the contrary, if one or more Banks become Defaulting Banks, then, upon notice to such effect by the Administrative Agent (which notice shall be given promptly after the Administrative Agent becomes aware that any Bank becomes shall have become a Defaulting Bank, then including as a result of being advised thereof by any Issuing Bank or the Lead Borrower), the following provisions shall apply for so long as any such Bank is a Defaulting Bank:
(ai) Commitment Fees no commitment fee shall cease to accrue on the unfunded portion unused amount of the any Commitment of such any Defaulting Bank pursuant to Section 2.5(a2.8(a);
(bii) the Commitment and Outstanding Credit Revolving Exposure of such each Defaulting Bank shall not be included disregarded in determining whether the Majority requisite Banks shall have taken or may take any action hereunder or under any other Loan Document (including any consent to any waiver, amendment or waiver other modification pursuant to Section 10.19.5); provided that any waiver, amendment, or other modification that, disregarding the effect of this clause (ii), requires the consent of each Bank directly affected thereby pursuant to clause (a), (b) or (c) of Section 9.5 shall continue to require the consent of each Defaulting Bank directly affected thereby in accordance with the terms hereof; provided, thatfurther, except as otherwise provided in that any waiver, amendment or other modification of this Section 10.12.20(a)(ii) or clause (a), this clause (b) shall not apply to the vote or (c) of Section 9.5 at any time that a Bank is a Defaulting Bank in the case of an amendment, waiver or other modification requiring shall require the consent of such Defaulting Bank or each if such Defaulting Bank would be directly adversely affected thereby;
(ciii) if any LC Obligations exist Exposure exists at the time a any Bank becomes a Defaulting Bank (each Letter of Credit to which such LC Exposure is attributable being referred to as a “Reallocated Letter of Credit”), then:
(iA) so long as no Default or Event subject to clause (B) below, the participation of Default each Non-Defaulting Bank in each Reallocated Letter of Credit shall be continuing immediately before adjusted to be determined under Section 2.18(d) on the basis of such Bank’s Adjusted Applicable Percentage (and all references in Section 2.18 to “Applicable Percentage” shall be deemed to be references to “Adjusted Applicable Percentage”);
(B) notwithstanding the foregoing:
(1) if any Bank that becomes a Defaulting Bank shall be an Issuing Bank or an Affiliate thereof, no adjustment shall be made pursuant to clause (A) above with respect to participations in any Letter of Credit issued by such Issuing Bank;
(2) if all the Defaulting Banks’ Applicable Percentage of the LC Exposure attributable to the Reallocated Letters of Credit (the “Defaulting Bank LC Exposure”) exceeds the unused portion of the Commitments of the Non-Defaulting Banks as of the time the adjustments are to be made pursuant to clause (A) above (such unused portion being referred to as the “Maximum Incremental Participation Amount”), then the incremental amount of participations acquired by the Non-Defaulting Banks under clause (A) above (the “Incremental LC Participations”) shall not exceed at any time the Maximum Incremental Participation Amount;
(3) adjustments under Section 2.20(a)(iii)(A) and (B) above shall only be made to the extent that, after giving effect to such reallocationadjustments, all the Revolving Exposure of any Non-Defaulting Bank shall not exceed its Commitment; and
(4) no adjustment shall be made under Section 2.20(a)(iii)(A) or (B) above if, at the time such adjustment is made, an Event of Default has occurred and is continuing;
(C) if the Defaulting Bank LC Exposure exceeds the Maximum Incremental Participation Amount, then the applicable Borrower or applicable Additional Borrower shall, within five Domestic Business Days after receipt of written notice to that effect from the Administrative Agent, cash collateralize the Reallocated Letters of Credit (in a manner and under documentation reasonably satisfactory to the Administrative Agent) in an aggregate amount equal to the excess, if any, of the Defaulting Bank LC Exposure over the Maximum Incremental Participation Amount or, if agreed to by the applicable Issuing Bank, enter into other arrangements with respect to the Reallocated Letters of Credit on terms mutually agreed between such Issuing Bank and the applicable Borrower or applicable Additional Borrower;
(D) if any part Reallocated Letter of Credit shall have been cash collateralized by the applicable Borrower or applicable Additional Borrower pursuant to clause (C) above, then (x) the applicable Borrower or applicable Additional Borrower shall not be required to pay any letter of credit participation fees pursuant to Section 2.8(b) with respect to the portion of such LC Obligation Reallocated Letter of Credit that is so cash collateralized and (y) to the extent any letter of credit participation fees are not required to be paid by reason of clause (x) above, the reduction in the amount of such fees shall be reallocated among allocated to the nonDefaulting Banks;
(E) if an adjustment shall have been made pursuant to clause (A) above to the participations of the Non-Defaulting Banks in Reallocated Letters of Credit, then the letter of credit participation fees that would otherwise have been payable to the Banks that are Defaulting Banks pursuant to Section 2.8(b) with respect to the portion of such Reallocated Letters of Credit equal to the Incremental LC Participations therein shall instead accrue for the accounts of, and be payable to, the Banks that are Non-Defaulting Banks in accordance with their respective Pro Rata Share but only to Adjusted Applicable Percentages;
(F) if the extent that (x) Defaulting Bank LC Exposure at any time shall exceed the sum of all non-Defaulting Banks’ Outstanding Credit Exposure does not exceed the total of all non-Defaulting Banks’ Commitments, (y) no Bank’s Outstanding Credit Exposure shall exceed its Commitment and (z) the conditions set forth in Section 11.2 are satisfied Incremental LC Participations at such time;
(ii) if time and the reallocation described in subclause (i) above cannot, or can only partially, be effected, the Company shall within one (1) Business Day following notice by the Agent, cash collateralize for the benefit portion of the relevant LC Issuer Reallocated Letters of Credit cash collateralized at such Defaulting Bank’s Pro Rata Share of the LC Obligations (after giving effect to any partial reallocation time pursuant to subclause clause (iC) above) in accordance with the procedures set forth in Section 9.2 for so long as such LC Obligation is outstanding;
(iii) if the Company cash collateralizes any portion of such Defaulting Bank’s Pro Rata Share of the LC Obligations pursuant this clause (c), the Company shall not be required to pay any fees to such Defaulting Bank pursuant to Section 3.4 with respect to such Defaulting Bank’s Pro Rata Share of the LC Obligations during the period such Defaulting Bank’s Pro Rata Share of the LC Obligations is cash collateralized;
(iv) if the non-Defaulting Banks’ Pro Rata Share of the LC Obligations is reallocated pursuant to this clause (c), then the fees payable to the Banks pursuant to Section 2.5(a) and Section 3.4 shall be adjusted in accordance with such non-Defaulting Banks’ Pro Rata Shares; or
(v) if any Defaulting Bank’s Pro Rata Share of the LC Obligations is neither reallocated nor cash collateralized pursuant to this clause (c), then, without prejudice to any rights or remedies of any LC Issuer Issuing Bank or any Non-Defaulting Bank hereunder, all letter of credit participation fees that otherwise would have been payable to such the Banks that are Defaulting Bank (solely Banks under Section 2.8(b) with respect to the portion of such the Defaulting Bank’s Commitment that was utilized by such Bank LC Obligations) and LC Fees payable under Section 3.4 with respect Exposure equal to such Defaulting Bank’s Pro Rata Share of excess shall instead accrue for the LC Obligations shall account of, and be payable to to, the applicable LC Issuer until such Defaulting Bank’s Pro Rata Share Issuing Bank that shall have issued the Reallocated Letters of the LC Obligation is cash collateralized and/or reallocatedCredit; and
(dG) so long the Revolving Exposure of each Non-Defaulting Bank shall be determined after giving effect to the Incremental LC Participations acquired by such Bank under the foregoing clauses of this clause (iii);
(iv) in the event any Letter of Credit shall be issued or amended to increase the amount thereof, (A) the participations of the Non-Defaulting Banks therein shall be determined in the manner set forth in clause (iii)(A) above, as if such Letter of Credit shall have been a Reallocated Letter of Credit, and (B) letter of credit participation fees that would otherwise have been payable to the Banks that are Defaulting Banks pursuant to Section 2.8(b) in respect of any Bank is a Defaulting Banksuch Letter of Credit shall be subject to clause (iii)(E) above; provided, however, that, notwithstanding anything to the contrary set forth herein, no LC Issuer Issuing Bank shall be required to issue issue, extend, renew or Modify increase the amount of any Facility LC, Letter of Credit unless it is satisfied that the related exposure Defaulting Banks’ Applicable Percentage of the LC Exposure attributable to such Letter of Credit will be 100% entirely covered by the Commitments participations therein of the nonNon-Defaulting Banks and/or cash collateral will be or other arrangements satisfactory to such Issuing Bank provided by the Company in accordance with clause applicable Borrower or applicable Additional Borrower (c) above, and participating interests in any such newly issued or Modified Facility LC shall be allocated among non-Defaulting Banks in a manner consistent with clause(c)(i) above (and Defaulting Banks shall not participate therein).
(e) If (i) a Bankruptcy Event with respect to a Parent of any Bank shall occur following the date hereof and for so long as such event shall continue or (ii) any LC Issuer has a good faith belief that any Bank has defaulted in fulfilling its obligations under one or more other agreements in which such Bank commits to extend credit, such LC Issuer shall not be required to issue, amend or increase any Facility LC, unless such LC Issuer, as the case may be, shall have entered into arrangements with the Company or such Bank, documentation satisfactory to such LC IssuerIssuing Bank); and
(v) any amount payable to or for the account of any Defaulting Bank in its capacity as a Bank hereunder (whether on account of principal, interest, fees or otherwise, and including any amounts payable to such Defaulting Bank pursuant to Sections 2.10 and 2.11, but excluding any amounts payable to such Defaulting Bank pursuant to Sections 2.13, 2.15, 2.17, 8.3 and 9.3) shall, in lieu of being distributed to such Defaulting Bank, be retained by the Administrative Agent in a segregated account and, subject to any applicable requirements of law, (A) be applied, at such time or times as may be determined by the case may beAdministrative Agent, (1) first, to defease the payment of any risk amounts owing by such Defaulting Bank to it the Administrative Agent hereunder, (2) second to the payment of any amounts owing by such Defaulting Bank to each Issuing Bank in respect of such Defaulting Bank’s participations in Letters of Credit (and to the extent any such amounts shall have been paid by Non-Defaulting Banks as a result of adjustments pursuant to clause (iii) above, to reimburse such Non-Defaulting Banks for such amounts), (3) third, to cash collateralize participation obligations of such Defaulting Bank in respect of outstanding Letters of Credit (with the concurrent release of an equivalent amount any cash collateral or other collateral security, if any, provided by the applicable Borrower pursuant to this Section) and (4) fourth, to the funding of such Defaulting Bank’s Applicable Percentage of any Borrowing in respect of which such Defaulting Bank shall have failed to fund such share as required hereunder, (B) to the extent not applied as aforesaid, be held, if so determined by the Administrative Agent, as cash collateral for funding obligations of such Defaulting Bank in respect of future Loans hereunder, (C) to the extent not applied or held as aforesaid, be applied, pro rata, to the payment of any amounts owing to any Borrower or the Non-Defaulting Banks as a result of any judgment of a court of competent jurisdiction obtained by any Borrower or any Non-Defaulting Bank against such Defaulting Bank as a result of such Defaulting Bank’s breach of its obligations hereunder and (D) to the extent not applied or held as aforesaid, be distributed to such Defaulting Bank or as otherwise directed by a court of competent jurisdiction.
(fb) In the event that the Administrative Agent, the Company, Issuing Banks and each LC Issuer each agrees the Borrowers shall have agreed that a Bank that is a Defaulting Bank has adequately remedied all matters that caused such Bank to be become a Defaulting Bank, then (i) such Bank shall cease to be a Defaulting Bank for all purposes hereof, (ii) the Banks’ Pro Rata Shares obligations of the LC Obligations Banks to purchase participations in Letters of Credit under Section 2.18(d) shall be readjusted to reflect be determined on the inclusion basis of such Bank’s Commitment Banks’ Applicable Percentages and on such date (iii) such Bank shall purchase at par such of the Loans of the other Banks as the Administrative Agent shall determine may to be necessary in order for such Bank the Loans to hold such Loans be held by the Banks in accordance with their Applicable Percentages.
(c) No Commitment of any Bank shall be increased or otherwise affected and, except as otherwise expressly provided in this Section, performance by any Borrower and any Additional Borrower of its Pro Rata Share obligations hereunder and under the other Loan Documents shall not be excused or otherwise modified as a result of the Aggregate Commitment; providedoperation of this Section. The rights and remedies against a Defaulting Bank under this Section are in addition to other rights and remedies that any Borrower, that if any Additional Borrower, the Company cash collateralized Administrative Agent, the Issuing Banks or any portion of Non-Defaulting Bank may have against such Defaulting Bank’s Pro Rata Share Bank (and, for the avoidance of doubt, each Non-Defaulting Bank shall have a claim against any Defaulting Bank for any losses it may suffer as a result of the LC Obligations pursuant to Section 4.7(coperation of this Section), such cash shall be returned to the Company.
Appears in 1 contract
Defaulting Banks. Notwithstanding any provision of this Agreement to the contrary, if any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Commitment Fees 2.14.1. fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Bank pursuant to Section 2.5(a)2.3 [Commitment Fees];
(b) 2.14.2. the Commitment and Outstanding Credit Exposure outstanding Loans of such Defaulting Bank shall not be included in determining whether the Majority Required Banks have taken or may take any action hereunder (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 10.110.1 [Modifications, Amendments or Waivers]); provided, that, except as otherwise provided in Section 10.1, that this clause (bii) shall not apply to the vote of a Defaulting Bank in the case of an amendment, waiver or other modification requiring the consent of such Bank or each Bank directly affected thereby;
(c) 2.14.3. if any LC Swing Loans are outstanding or any Letter of Credit Obligations exist at the time a such Bank becomes a Defaulting Bank Bank, then:
(i) so long as no Default or Event of Default shall be continuing immediately before or after giving effect to such reallocation, 2.14.3.1 all or any part of the outstanding Swing Loans and Letter of Credit Obligations of such LC Obligation Defaulting Bank shall be reallocated among the non-Defaulting Banks in accordance with their respective Pro Rata Share Ratable Shares but only to the extent that (x) the sum of all non-Defaulting Banks’ Outstanding Credit Exposure Dollar Equivalent Revolving Facility Usage does not exceed the total of all non-Defaulting Banks’ ' Revolving Credit Commitments, and (y) no Bank’s Outstanding Credit Exposure shall exceed its Commitment Potential Default or Event of Default has occurred and (z) the conditions set forth in Section 11.2 are satisfied is continuing at such time;
(ii) 2.14.3.2 if the reallocation described in subclause (i) Section 2.14.3.1 above cannot, or can only partially, be effected, the Company Borrower shall within one (1) Business Day following notice by the AgentAdministrative Agent (x) first, prepay such outstanding Swing Loans, and (y) second, cash collateralize for the benefit of the relevant LC Issuer Issuing Bank the Borrower's obligations corresponding to such Defaulting Bank’s Pro Rata Share 's Letter of the LC Credit Obligations (after giving effect to any partial reallocation pursuant to subclause (i) Section 2.14.3.1 above) in accordance with a deposit account held at the procedures set forth in Section 9.2 Administrative Agent for so long as such LC Obligation is Letter of Credit Obligations are outstanding;
(iii) 2.14.3.3 if the Company Borrower cash collateralizes any portion of such Defaulting Bank’s Pro Rata Share 's Letter of the LC Credit Obligations pursuant this clause (c)to Section 2.14.3.2 above, the Company Borrower shall not be required to pay any fees to such Defaulting Bank pursuant to Section 3.4 2.9.2 [Letter of Credit Fees] with respect to such Defaulting Bank’s Pro Rata Share 's Letter of the LC Credit Obligations during the period such Defaulting Bank’s Pro Rata Share 's Letter of the LC Credit Obligations is are cash collateralized;
(iv) 2.14.3.4 if the Letter of Credit Obligations of the non-Defaulting Banks’ Pro Rata Share of the LC Obligations is Banks are reallocated pursuant to this clause (c)Section 2.14.3.1 above, then the fees payable to the Banks pursuant to Section 2.5(a) and Section 3.4 2.9.2 shall be adjusted in accordance with such non-Defaulting Banks’ Pro Rata Shares' Ratable Share; orand
(v) 2.14.3.5 if all or any portion of such Defaulting Bank’s Pro Rata Share 's Letter of the LC Credit Obligations is are neither reallocated nor cash collateralized pursuant to this clause (c)Section 2.14.3.1 or 2.13.3.2 above, then, without prejudice to any rights or remedies of any LC Issuer the Issuing Bank or any other Bank hereunder, all fees that otherwise would have been payable to such Defaulting Bank (solely with respect to the portion Letter of such Defaulting Bank’s Commitment that was utilized by such LC Obligations) and LC Credit Fees payable under Section 3.4 2.9.2 with respect to such Defaulting Bank’s Pro Rata Share 's Letter of the LC Credit Obligations shall be payable to the applicable LC Issuer until Issuing Bank (and not to such Defaulting Bank’s Pro Rata Share ) until and to the extent that such Letter of the LC Obligation is Credit Obligations are reallocated and/or cash collateralized and/or reallocatedcollateralized; and
(d) 2.14.4. so long as any such Bank is a Defaulting Bank, no LC Issuer PNC shall not be required to issue fund any Swing Loans and the Issuing Bank shall not be required to issue, amend or Modify increase any Facility LCLetter of Credit, unless it such Issuing Bank is satisfied that the related exposure and the Defaulting Bank's then outstanding Letter of Credit Obligations will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Banks and/or cash collateral will be provided by the Company Borrower in accordance with clause (c) aboveSection 2.14.3, and participating interests in any such newly made Swing Loan or any newly issued or Modified Facility LC increased Letter of Credit shall be allocated among non-Defaulting Banks in a manner consistent with clause(c)(i) above Section 2.14.3.1 (and such Defaulting Banks Bank shall not participate therein).
(e) . If (i) a Bankruptcy Event with respect to a Parent parent company of any Bank shall occur following the date hereof and for so long as such event shall continue continue, or (ii) any LC Issuer PNC or the Issuing Bank has a good faith belief that any Bank has defaulted in fulfilling its obligations under one or more other agreements in which such Bank commits to extend credit, such LC Issuer PNC shall not be required to fund any Swing Loan and the Issuing Bank shall not be required to issue, amend or increase any Facility LCLetter of Credit, unless such LC IssuerPNC or the Issuing Bank, as the case may be, shall have entered into arrangements with the Company Borrower or such Bank, satisfactory to such LC IssuerPNC or the Issuing Bank, as the case may be, to defease any risk to it in respect of such Bank hereunder.
(f) . In the event that the Administrative Agent, the CompanyBorrower, PNC and each LC Issuer each agrees the Issuing Bank agree in writing that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the Banks’ Pro Rata Shares Administrative Agent will so notify the parties hereto, and the Ratable Share of the LC Swing Loans and Letter of Credit Obligations of the Banks shall be readjusted to reflect the inclusion of such Bank’s Commitment 's Commitment, and on such date such Bank shall purchase at par such of the Loans of the other Banks (other than Swing Loans) as the Administrative Agent shall determine may be necessary in order for such Bank to hold such Loans in accordance with its Pro Rata Share of the Aggregate Commitment; provided, that if the Company cash collateralized any portion of such Defaulting Bank’s Pro Rata Share of the LC Obligations pursuant to Section 4.7(c), such cash shall be returned to the CompanyRatable Share.
Appears in 1 contract
Sources: Revolving Credit Facility (Papa Johns International Inc)
Defaulting Banks. Notwithstanding any provision of this Agreement to the contrary, if any Bank becomes a Defaulting Bank, then the Paying Agent shall deliver written notice to such effect, upon the Paying Agent’s obtaining knowledge of such event, to the Company and such Defaulting Bank, and the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Commitment Fees shall cease to accrue on the unfunded portion of with respect to the Commitment of such Defaulting Bank pursuant to Section 2.5(a);2.4.
(b) the The Commitment and Outstanding Revolving Credit Exposure of such Defaulting Bank shall not be included in determining whether all Banks or the Majority Banks have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.19.1); provided, thatprovided that any waiver, except as otherwise provided in Section 10.1, this clause (b) shall not apply to the vote of a Defaulting Bank in the case of an amendment, waiver amendment or other modification requiring the consent of all Banks or each affected Bank which would increase or extend the term of the Commitment of such Defaulting Bank or each which affects such Defaulting Bank directly differently than other affected thereby;Banks shall require the consent of such Defaulting Bank.
(c) if If any LC L/C Obligations exist at the time a Bank becomes a Defaulting Bank Bank, then:
(i) so long as no Default or Event of Default shall be continuing immediately before or after giving effect to such reallocation, all or any part of such LC Obligation L/C Obligations shall be reallocated among the non-Defaulting Banks ratably in accordance with their respective Pro Rata Share Commitments but only to the extent that (x) the sum of all non-Defaulting Banks’ Outstanding Revolving Credit Exposure Exposures does not then exceed the total of all non-Defaulting Banks’ Commitments, (y) no non-Defaulting Bank’s Outstanding Revolving Credit Exposure shall exceed its Commitment then exceeds such non-Defaulting Bank’s Commitments and (z) the conditions set forth in Section 11.2 4.3 are satisfied at such time;
(ii) if the reallocation described in subclause clause (i) above cannot, or can only partially, be effected, the Company shall within one (1) Business Day following notice by the Agent, Paying Agent cash collateralize for the benefit of the relevant LC Issuer percentage such Defaulting Bank’s Pro Rata Share Commitment represents of the LC Total Commitment of the L/C Obligations (after giving effect to any partial reallocation pursuant to subclause clause (i) above) in accordance with the procedures set forth in Section 9.2 7.2 for so long as such LC Obligation is L/C Obligations are outstanding;
(iii) if the Company cash collateralizes any portion of such Defaulting Bank’s Pro Rata Share of the LC L/C Obligations pursuant to this clause (cSection 2.22(c), the Company shall not be required to pay any fees to such Defaulting Bank pursuant to Section 3.4 3.3 with respect to such Defaulting Bank’s Pro Rata Share portion of the LC L/C Obligations during the period of such Defaulting Bank’s Pro Rata Share of the LC Obligations is cash collateralizedcollateralization;
(iv) if the L/C Obligations of the non-Defaulting Banks’ Pro Rata Share of the LC Obligations is Banks are reallocated pursuant to this clause (cSection 2.22(c), then the fees payable to the Banks pursuant to Section 2.5(a) and Section 3.4 3.3 shall be adjusted ratably in accordance with such non-Defaulting Banks’ Pro Rata Sharestheir respective Commitments; orand
(v) if any Defaulting Bank’s Pro Rata Share of the LC L/C Obligations is are neither reallocated nor cash collateralized nor reallocated pursuant to this clause (cSection 2.22(c), then, without prejudice to any rights or remedies of any LC Issuer the applicable Issuing Bank or any Bank hereunder, all fees Commitment Fees that otherwise would have been payable to such Defaulting Bank (solely with respect to the portion of such Defaulting Bank’s Commitment that was utilized by such LC L/C Obligations) and LC Fees letter of credit fees payable under Section 3.4 3.3 with respect to such Defaulting Bank’s Pro Rata Share of the LC L/C Obligations shall be payable to the applicable LC Issuer Issuing Bank until such Defaulting Bank’s Pro Rata Share of the LC Obligation is L/C Obligations are cash collateralized and/or reallocated; and. 509265-1983-14872-Active.19588122.12
(d) so So long as any Bank is a Defaulting Bank, no LC Issuer Issuing Bank shall be required to issue issue, amend or Modify increase any Facility LCLetter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Banks and/or cash collateral will be provided by the Company in accordance with clause (c) aboveSection 2.22(c), and participating interests in any such newly issued or Modified Facility LC increased Letter of Credit shall be allocated among non-Defaulting Banks in a manner consistent with clause(c)(iSection 2.22(c)(i) above (and Defaulting Banks shall not participate therein).
(e) If Any amount payable to such Defaulting Bank hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Bank pursuant to Section 2.16, but excluding amounts payable pursuant to Section 2.23) shall, in lieu of being distributed to such Defaulting Bank, subject to any applicable requirements of law, be applied at such time or times as may be determined by the Paying Agent (i) first, to the payment of any amounts owing by such Defaulting Bank to the Paying Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Bank to the Issuing Banks hereunder, (iii) third, if so determined by the Paying Agent or requested by an Issuing Bank, held in such account as cash collateral for future funding obligations of the Defaulting Bank in respect of any existing or future participating interest in any Letter of Credit, (iv) fourth, to the funding of any Loan in respect of which such Defaulting Bank has failed to fund its portion thereof as required by this Agreement, as determined by the Paying Agent, (v) fifth, if so determined by the Paying Agent and the Company, held in such account as cash collateral for future funding obligations of the Defaulting Bank in respect of any Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Banks or an Issuing Bank as a Bankruptcy Event result of any judgment of a court of competent jurisdiction obtained by any Bank or such Issuing Bank against such Defaulting Bank as a result of such Defaulting Bank’s breach of its obligations under this Agreement, (vii) seventh, 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 Bank as a result of such Defaulting Bank’s breach of its obligations under this Agreement, and (viii) eighth, to such Defaulting Bank or as otherwise directed by a court of competent jurisdiction, provided, with respect to this clause (viii), that if such payment is (x) a Parent prepayment of the principal amount of any Bank shall occur following the date hereof and for so long as such event shall continue Loans or (ii) any LC Issuer has a good faith belief that any Bank has defaulted in fulfilling its reimbursement obligations under one or more other agreements in which such Bank commits to extend credit, such LC Issuer shall not be required to issue, amend or increase any Facility LC, unless such LC Issuer, as the case may be, shall have entered into arrangements with the Company or such Bank, satisfactory to such LC Issuer, as the case may be, to defease any risk to it in respect of any drafts paid by an Issuing Bank under any Letters of Credit which a Defaulting Bank has funded its participation obligations and (y) made at a time when the conditions set forth in Section 4.3 are satisfied, such Bank hereunder.
(f) payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Banks pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Bank. In the event that the Paying Agent, each Issuing Bank and the Company, and each LC Issuer Company each agrees that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank or upon receipt by the Paying Agent of the confirmation referred to in clause (c) of the definition of “Defaulting Bank”, as applicable, then the Banks’ Pro Rata Shares of the LC Obligations shall be readjusted to reflect the inclusion of such Bank’s Commitment and on such date such Bank shall purchase at par such portion of the Loans of the other Banks as the Paying Agent shall determine may be necessary in order for such Bank to hold such Loans ratably in accordance with its Pro Rata Share of the Aggregate Commitment; provided, that if the Company cash collateralized any portion of such Defaulting Bank’s Pro Rata Share of the LC Obligations pursuant to Section 4.7(c), such cash shall be returned to the Company.
Appears in 1 contract
Sources: Revolving Credit Facility Agreement (Southwest Airlines Co)
Defaulting Banks. Notwithstanding any provision of this Agreement to the contrary, if If any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Commitment Fees shall cease to accrue on the unfunded portion of neither the Commitment of such Defaulting Bank pursuant to Section 2.5(a);
(b) nor the Commitment and Outstanding Credit Exposure Loans of such Defaulting Bank shall not be included in determining whether all Banks or the Majority Required Banks have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.19.05); providedprovided that any waiver, that, except as otherwise provided in Section 10.1, this clause (b) shall not apply to the vote of a Defaulting Bank in the case of an amendment, waiver amendment or other modification requiring the consent of all Banks which affects such Defaulting Bank differently than other affected Banks shall require the consent of such Defaulting Bank; provided further that no waiver, amendment or each modification of the type described in clause (i), (ii) or (iii) of Section 9.05 may be made without the written consent of any Defaulting Bank directly affected thereby;
(cb) the Company may, at its sole expense, upon notice to such Defaulting Bank and the Administrative Agent, require such Defaulting Bank to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in Section 9.06, with the Company or the replacement Bank paying the processing and recording fee), all of its interests, rights and obligations under this Agreement to an Assignee that shall assume such obligations (which Assignee may be another Bank, if any LC Obligations exist at the time a Bank becomes a Defaulting Bank then:
accepts such assignment); provided that (i) so long as no Default or Event the Company shall have received the prior written consent of Default shall be continuing immediately before or after giving effect the Administrative Agent to such reallocation, all or any part of such LC Obligation shall be reallocated among the non-Defaulting Banks in accordance with their respective Pro Rata Share but only assignment (to the extent that (x) the sum of all non-Defaulting Banks’ Outstanding Credit Exposure does such consent would otherwise be required pursuant to Section 9.06), which consent shall not exceed the total of all non-Defaulting Banks’ Commitmentsunreasonably be withheld, (y) no Bank’s Outstanding Credit Exposure shall exceed its Commitment and (zii) such Defaulting Bank shall have received payment of an amount equal to the conditions set forth in Section 11.2 are satisfied at outstanding principal of its Loans, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the Assignee (to the extent of such timeoutstanding principal and accrued interest and fees) or the Company;
(iic) if facility fees shall cease to accrue on the reallocation described in subclause (i) above cannot, or can only partially, be effected, the Company shall within one (1) Business Day following notice by the Agent, cash collateralize for the benefit unused portion of the relevant LC Issuer such Defaulting Bank’s Pro Rata Share Commitment of the LC Obligations (after giving effect to any partial reallocation pursuant to subclause (i) above) in accordance with the procedures set forth in Section 9.2 for so long as such LC Obligation is outstanding;
(iii) if the Company cash collateralizes any portion of such Defaulting Bank’s Pro Rata Share of the LC Obligations pursuant this clause (c), the Company shall not be required to pay any fees to such Defaulting Bank pursuant to Section 3.4 with respect 2.08;
(d) notwithstanding any contrary provision in this Agreement, the Company may (i) prepay, without penalty or premium, the Loans made by a Defaulting Bank and (ii) terminate the unused amount of the Commitment of a Defaulting Bank, in each case, (x) without pro rata prepayment of Loans of other Banks or pro rata termination of Commitments of other Banks and (y) upon not less than two Business Days’ prior notice to the Administrative Agent (which will promptly notify the Banks thereof), it being understood that such prepayment and termination will not be deemed to be a waiver or release of any claim the Company or the Administrative Agent may have against such Defaulting Bank’s Pro Rata Share of the LC Obligations during the period such Defaulting Bank’s Pro Rata Share of the LC Obligations is cash collateralized;; and
(ive) if the non-Defaulting Banks’ Pro Rata Share of the LC Obligations is reallocated pursuant to nothing in this clause (c), then the fees payable to the Banks pursuant to Section 2.5(a) and Section 3.4 shall be adjusted in accordance with such non-Defaulting Banks’ Pro Rata Shares; or
(v) if any Defaulting Bank’s Pro Rata Share of the LC Obligations is neither reallocated nor cash collateralized pursuant to this clause (c), then, without prejudice to affect any rights or remedies of the Company may have against any LC Issuer or any Bank hereunder, all fees that otherwise would have been payable to such Defaulting Bank (solely with respect to the portion of such Defaulting Bank’s Commitment that was utilized by such LC Obligations) and LC Fees payable under Section 3.4 with respect to such Defaulting Bank’s Pro Rata Share of the LC Obligations shall be payable to the applicable LC Issuer until such Defaulting Bank’s Pro Rata Share of the LC Obligation is cash collateralized and/or reallocated; and
(d) so long as any Bank is a Defaulting Bank, no LC Issuer shall be required to issue or Modify any Facility LC, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Banks and/or cash collateral will be provided by the Company in accordance with clause (c) above, and participating interests in any such newly issued or Modified Facility LC shall be allocated among non-Defaulting Banks in a manner consistent with clause(c)(i) above (and Defaulting Banks shall not participate therein).
(e) If (i) a Bankruptcy Event with respect to a Parent of any Bank shall occur following the date hereof and for so long as such event shall continue or (ii) any LC Issuer has a good faith belief that any Bank has defaulted in fulfilling its obligations under one or more other agreements in which such Bank commits to extend credit, such LC Issuer shall not be required to issue, amend or increase any Facility LC, unless such LC Issuer, as the case may be, shall have entered into arrangements with the Company or such Bank, satisfactory to such LC Issuer, as the case may be, to defease any risk to it in respect of such Bank hereunder.
(f) . In the event and on the date that the Agent, Administrative Agent and the Company, and Company each LC Issuer each agrees agree that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the Banks’ Pro Rata Shares of the LC Obligations shall be readjusted to reflect the inclusion of such Bank’s Commitment and on such date such Bank shall purchase at par such of the Loans of the other Banks as the Administrative Agent shall determine may be necessary in order for such Bank to hold such Loans in accordance with its Pro Rata Share of the Aggregate Commitment; provided, that if the Company cash collateralized any portion of Commitment and such Bank shall no longer be a Defaulting Bank’s Pro Rata Share of the LC Obligations pursuant to Section 4.7(c), such cash shall be returned to the Company.
Appears in 1 contract
Defaulting Banks. Notwithstanding any provision of this Agreement to the contrary, if any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Commitment Fees payable in accordance with Section 2.05(a) shall cease to accrue on the unfunded portion of the Commitment Amount of such Defaulting Bank pursuant to Section 2.5(a)Bank;
(b) the Commitment Amount and Outstanding Credit Exposure of such Defaulting Bank shall not be included in determining whether all Banks or the Majority Required Banks have taken or may take any action hereunder (including any amendment, waiver, or consent to any amendment or waiver pursuant to Section 10.18.01); providedprovided that any waiver, that, except as otherwise provided in Section 10.1, this clause (b) shall not apply to the vote of a Defaulting Bank in the case of an amendment, waiver consent, or other modification requiring that (i) reduces the principal of, or interest on, any reimbursement obligation or any fee or other amount payable to such Defaulting Bank hereunder, (ii) increases such Defaulting Bank's Commitment Amount, (iii) extends the Termination Date, (iv) postpones any date fixed for any payment of principal of, or interest on, any reimbursement obligation, fee or other amount payable to such Defaulting Bank hereunder, or (iv) requires the consent of all Banks or each affected Bank which affects such Defaulting Bank differently than other affected Banks shall, in each case, require the consent of such Bank or each Bank directly affected therebyDefaulting Bank;
(c) if any LC Obligations exist Credit Exposure exists at the time a Bank becomes a Defaulting Bank then:
(i) so long as no Default or Event of Default shall be continuing immediately before or after giving effect to such reallocation, all or any part of such LC Obligation Credit Exposure shall be reallocated among the non-Defaulting Banks in accordance with their respective Pro Rata Share Shares but only to the extent that (x) the sum of all non-Defaulting Banks’ Outstanding ' Credit Exposures plus such Defaulting Bank's Credit Exposure does not exceed the total of all non-Defaulting Banks’ Commitments, ' Commitment Amounts and (y) no Bank’s Outstanding Credit Exposure shall exceed its Commitment and (z) the conditions set forth in Section 11.2 3.02 are satisfied at such time;
(ii) if the reallocation described in subclause clause (i) above cannot, or can only partially, be effected, the Company shall within one (1) Business Day following notice by the Agent, each Applicant may cash collateralize for the benefit of the relevant LC Issuer such Defaulting Bank’s Pro Rata Share of the LC Obligations 's Credit Exposure (after giving effect to any partial reallocation pursuant to subclause clause (i) above) in accordance with a manner reasonably satisfactory to the procedures set forth in Section 9.2 Administrative Agent and the Issuing Bank for so long as such LC Obligation Credit Exposure is outstanding;
(iii) if the Company any Applicant cash collateralizes any portion of such Defaulting Bank’s Pro Rata Share of the LC Obligations 's Credit Exposure pursuant this clause (cto Section 2.12(c), the Company Applicants shall not be required to pay any fees to such Defaulting Bank pursuant to Section 3.4 2.05(b) with respect to such Defaulting Bank’s Pro Rata Share of the LC Obligations 's Credit Exposure during the period such Defaulting Bank’s Pro Rata Share of the LC Obligations 's Credit Exposure is cash collateralized;
(iv) if the Credit Exposure of the non-Defaulting Banks’ Pro Rata Share of the LC Obligations Banks is reallocated pursuant to this clause (cSection 2.12(c), then the fees payable to the Banks pursuant to Section 2.5(a2.05(a) and Section 3.4 2.05(b) shall be adjusted in accordance with such non-Defaulting Banks’ ' Pro Rata Shares; or
(v) if any Defaulting Bank’s Pro Rata Share of the LC Obligations 's Credit Exposure is neither reallocated nor cash collateralized nor reallocated pursuant to this clause (cSection 2.12(c), then, without prejudice to any rights or remedies of any LC Issuer the Issuing Bank or any Bank hereunder, all fees that otherwise would have been payable to such Defaulting Bank (solely with respect to the portion of such Defaulting Bank’s Commitment that was utilized by such LC Obligations) and LC Fees payable under Section 3.4 2.05(b) with respect to such Defaulting Bank’s Pro Rata Share of the LC Obligations 's Credit Exposure shall be payable to the applicable LC Issuer Issuing Bank until such Defaulting Bank’s Pro Rata Share of the LC Obligation Credit Exposure is cash collateralized and/or reallocated; and
(d) so long as any Bank is a Defaulting Bank, no LC Issuer the Issuing Bank shall not be required to issue issue, amend, or Modify increase any Facility LCLOC, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Banks and/or cash collateral will be provided by the Company applicable Applicant in accordance with clause (c) abovea manner satisfactory to the Administrative Agent and the Issuing Bank in their sole discretion, and participating interests in any such newly issued or Modified Facility LC increased LOC shall be allocated among non-Defaulting Banks in a manner consistent with clause(c)(iSection 2.12(c)(i) above (and Defaulting Banks shall not participate therein).
(e) If (i) a Bankruptcy Event with respect to a Parent of any Bank shall occur following the date hereof and for so long as such event shall continue or (ii) any LC Issuer has a good faith belief that any Bank has defaulted in fulfilling its obligations under one or more other agreements in which such Bank commits to extend credit, such LC Issuer shall not be required to issue, amend or increase any Facility LC, unless such LC Issuer, as the case may be, shall have entered into arrangements with the Company or such Bank, satisfactory to such LC Issuer, as the case may be, to defease any risk to it in respect of such Bank hereunder.
(f) . In the event that the Administrative Agent, the Company, and each LC Issuer the Issuing Bank each agrees that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the Banks’ Pro Rata Shares Credit Exposure of the LC Obligations Banks shall be readjusted to reflect the inclusion of such Bank’s 's Commitment Amount and on such date such Bank shall purchase at par such of the Loans of the other Banks participations in outstanding LOCs and LOC Disbursements as the Administrative Agent shall determine may be necessary in order for such Bank to hold such Loans participations in accordance with its Pro Rata Share of the Aggregate Commitment; provided, that if the Company cash collateralized any portion of such Defaulting Bank’s Pro Rata Share of the LC Obligations pursuant to Section 4.7(c), such cash shall be returned to the CompanyShare.
Appears in 1 contract
Sources: Letter of Credit Facility Agreement (Sunpower Corp)
Defaulting Banks. Notwithstanding any provision of this Agreement to the contrary, if If any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Commitment Fees shall cease to accrue on the unfunded portion of neither the Commitment of such Defaulting Bank pursuant to Section 2.5(a);
(b) nor the Commitment and Outstanding Credit Exposure Loans of such Defaulting Bank shall not be included in determining whether all Banks or the Majority Required Banks have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.19.05); providedprovided that any waiver, that, except as otherwise provided in Section 10.1, this clause (b) shall not apply to the vote of a Defaulting Bank in the case of an amendment, waiver amendment or other modification requiring the consent of all Banks which affects such Defaulting Bank differently than other affected Banks shall require the consent of such Defaulting Bank; provided further that no waiver, amendment or each modification of the type described in clause (i), (ii) or (iii) of Section 9.05 may be made without the written consent of any Defaulting Bank directly affected thereby;
(cb) the Company may, at its sole expense, upon notice to such Defaulting Bank and the Administrative Agent, require such Defaulting Bank to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in Section 9.06, with the Company or the replacement Bank paying the processing and recording fee), all of its interests, rights and obligations under this Agreement to an Assignee that shall assume such obligations (which Assignee may be another Bank, if any LC Obligations exist at the time a Bank becomes a Defaulting Bank then:
accepts such assignment); provided that (i) so long as no Default or Event the Company shall have received the prior written consent of Default shall be continuing immediately before or after giving effect the Administrative Agent to such reallocation, all or any part of such LC Obligation shall be reallocated among the non-Defaulting Banks in accordance with their respective Pro Rata Share but only assignment (to the extent that (x) the sum of all non-Defaulting Banks’ Outstanding Credit Exposure does such consent would otherwise be required pursuant to Section 9.06), which consent shall not exceed the total of all non-Defaulting Banks’ Commitmentsunreasonably be withheld, (y) no Bank’s Outstanding Credit Exposure shall exceed its Commitment delayed or conditioned, and (zii) such Defaulting Bank shall have received payment of an amount equal to the conditions set forth in Section 11.2 are satisfied at outstanding principal of its Loans, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the Assignee (to the extent of such timeoutstanding principal and accrued interest and fees) or the Company;
(iic) if facility fees shall cease to accrue on the reallocation described in subclause (i) above cannot, or can only partially, be effected, the Company shall within one (1) Business Day following notice by the Agent, cash collateralize for the benefit unused portion of the relevant LC Issuer such Defaulting Bank’s Pro Rata Share Commitment of the LC Obligations (after giving effect to any partial reallocation pursuant to subclause (i) above) in accordance with the procedures set forth in Section 9.2 for so long as such LC Obligation is outstanding;
(iii) if the Company cash collateralizes any portion of such Defaulting Bank’s Pro Rata Share of the LC Obligations pursuant this clause (c), the Company shall not be required to pay any fees to such Defaulting Bank pursuant to Section 3.4 with respect 2.08;
(d) notwithstanding any contrary provision in this Agreement, the Company may (i) prepay, without penalty or premium, the Loans made by a Defaulting Bank and (ii) terminate the unused amount of the Commitment of a Defaulting Bank, in each case, (x) without pro rata prepayment of Loans of other Banks or pro rata termination of Commitments of other Banks and (y) upon not less than two Business Days’ prior notice to the Administrative Agent (which will promptly notify the Banks thereof), it being understood that such prepayment and termination will not be deemed to be a waiver or release of any claim the Company or the Administrative Agent may have against such Defaulting Bank’s Pro Rata Share of the LC Obligations during the period such Defaulting Bank’s Pro Rata Share of the LC Obligations is cash collateralized;; and
(ive) if the non-Defaulting Banks’ Pro Rata Share of the LC Obligations is reallocated pursuant to nothing in this clause (c), then the fees payable to the Banks pursuant to Section 2.5(a) and Section 3.4 shall be adjusted in accordance with such non-Defaulting Banks’ Pro Rata Shares; or
(v) if any Defaulting Bank’s Pro Rata Share of the LC Obligations is neither reallocated nor cash collateralized pursuant to this clause (c), then, without prejudice to affect any rights or remedies of the Company may have against any LC Issuer or any Bank hereunder, all fees that otherwise would have been payable to such Defaulting Bank (solely with respect to the portion of such Defaulting Bank’s Commitment that was utilized by such LC Obligations) and LC Fees payable under Section 3.4 with respect to such Defaulting Bank’s Pro Rata Share of the LC Obligations shall be payable to the applicable LC Issuer until such Defaulting Bank’s Pro Rata Share of the LC Obligation is cash collateralized and/or reallocated; and
(d) so long as any Bank is a Defaulting Bank, no LC Issuer shall be required to issue or Modify any Facility LC, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Banks and/or cash collateral will be provided by the Company in accordance with clause (c) above, and participating interests in any such newly issued or Modified Facility LC shall be allocated among non-Defaulting Banks in a manner consistent with clause(c)(i) above (and Defaulting Banks shall not participate therein).
(e) If (i) a Bankruptcy Event with respect to a Parent of any Bank shall occur following the date hereof and for so long as such event shall continue or (ii) any LC Issuer has a good faith belief that any Bank has defaulted in fulfilling its obligations under one or more other agreements in which such Bank commits to extend credit, such LC Issuer shall not be required to issue, amend or increase any Facility LC, unless such LC Issuer, as the case may be, shall have entered into arrangements with the Company or such Bank, satisfactory to such LC Issuer, as the case may be, to defease any risk to it in respect of such Bank hereunder.
(f) . In the event and on the date that the Agent, Administrative Agent and the Company, and Company each LC Issuer each agrees agree that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the Banks’ Pro Rata Shares of the LC Obligations shall be readjusted to reflect the inclusion of such Bank’s Commitment and on such date such Bank shall purchase at par such of the Loans of the other Banks as the Administrative Agent shall determine may be necessary in order for such Bank to hold such Loans in accordance with its Pro Rata Share of the Aggregate Commitment; provided, that if the Company cash collateralized any portion of Commitment and such Bank shall no longer be a Defaulting Bank’s Pro Rata Share of the LC Obligations pursuant to Section 4.7(c), such cash shall be returned to the Company.
Appears in 1 contract
Defaulting Banks. Notwithstanding anything contained in Sections 2.8, 2.9 or any other provision of this Agreement to the contrary, if any Bank becomes a Defaulting BankBank then: all Letters of Credit Outstanding and Swing Loans outstanding at such time, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Commitment Fees shall cease to accrue on the unfunded portion and all Letters of the Commitment of such Defaulting Bank pursuant to Section 2.5(a);
(b) the Commitment and Outstanding Credit Exposure of such Defaulting Bank shall not be included in determining whether the Majority Banks have taken issued or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.1); provided, that, except as otherwise provided in Section 10.1, this clause (b) shall not apply to the vote of Swing Loans made while there exists a Defaulting Bank in the case of an amendment, waiver or other modification requiring the consent of such Bank or each Bank directly affected thereby;
(c) if any LC Obligations exist at the time a Bank becomes a Defaulting Bank then:
(i) so long as no Default or Event of Default shall be continuing immediately before or after giving effect to such reallocation, all or any part of such LC Obligation shall be reallocated among the non-Defaulting Banks in accordance with their respective Pro Rata Share Ratable Shares (such Ratable Shares shall be determined without reference to each Defaulting Bank's Ratable Share) so long as no Potential Default or Event of Default exists on the date of reallocation and thereafter continues uncured, but only to the extent that (xa) the sum of all non-Defaulting Banks’ ' Revolving Credit Loans then outstanding plus the sum of such non-Defaulting Banks' Ratable Share of the Dollar Equivalent of all Swing Loans then outstanding and Letters of Credit Outstanding Credit Exposure at such time does not exceed the total of all non-Defaulting Banks’ Commitments, (y) no Bank’s Outstanding ' Revolving Credit Exposure shall exceed its Commitment Commitments and (zb) the conditions set forth aggregate obligation of each non-Defaulting Bank to acquire, refinance or fund any participations in Section 11.2 are satisfied the Defaulting Bank's portion of Letters of Credit Outstanding and Swing Loans pursuant to reallocation contemplated above shall not exceed the positive difference between (i) the Revolving Credit Commitment of such Bank minus (ii) such Bank's Revolving Credit Loans then outstanding plus such Bank's Ratable Share of the Dollar Equivalent of all Swing Loans then outstanding and Letters of Credit Outstanding at such time;
(ii) if . If the reallocation described in subclause (i) above the preceding sentence cannot, or can only partially, be effected, the Company Borrowers shall within one (1) Business Day following notice by the Administrative Agent, (1) first, prepay outstanding Swing Loans and (2) second, cash collateralize for the benefit of the relevant LC Issuer such Defaulting Bank’s Pro Rata Share 's portion of the LC Obligations Letters of Credit Outstanding (in each case, after giving effect to any partial reallocation pursuant to subclause (i) above) in accordance with the procedures set forth in Section 9.2 for so long as immediately preceding sentence). To the extent such LC Obligation is outstanding;
(iii) if the Company cash collateralizes any portion Letters of such Defaulting Bank’s Pro Rata Share of the LC Obligations pursuant this clause (c), the Company shall not be required to pay any fees to such Defaulting Bank pursuant to Section 3.4 with respect to such Defaulting Bank’s Pro Rata Share of the LC Obligations during the period such Defaulting Bank’s Pro Rata Share of the LC Obligations is cash collateralized;
(iv) if the non-Defaulting Banks’ Pro Rata Share of the LC Obligations is Credit Outstanding and Swing Loans are reallocated pursuant to this clause (c)Section 2.14, then the fees payable to the Banks pursuant to Section 2.5(a2.8.2 (but not Section 2.3) and Section 3.4 shall be adjusted in accordance with such non-Defaulting Banks’ Pro Rata ' Ratable Shares; or
(v) if any . To the extent a portion of the Defaulting Bank’s Pro Rata Share 's Letters of the LC Obligations is neither reallocated nor Credit outstanding are cash collateralized pursuant to this clause (c)2) above, the Borrowers shall not be obligated to pay any fees to or for the account of such Defaulting Bank pursuant to Section 2.8.2 with respect to such Defaulting Bank's Letter of Credit Outstandings during the period such Defaulting Bank's Letter of Credit Outstandings are cash collateralized. To the extent such Letters of Credit Outstanding are not reallocated pursuant to this Section 2.14, or the Defaulting Bank's Ratable Share of Letters of Credit Outstanding have not been cash collateralized, then, without prejudice to any rights or remedies of any LC Issuer the Issuing Bank or any Bank hereunder, all fees Commitment Fees that otherwise would have been payable to such Defaulting Bank (solely with respect to the portion of such Defaulting Bank’s 's Commitment that was utilized by such LC ObligationsLetters of Credit Outstanding) and LC Letter of Credit Fees payable under Section 3.4 with respect to such Defaulting Bank’s Pro Rata 's Ratable Share of the LC Obligations Letters of Credit Outstanding shall be payable to the applicable LC Issuer until Issuing Bank. Nothing contained in this Section or elsewhere in this Agreement and no reallocation of any Defaulting Bank's Ratable Share of any obligation hereunder shall relieve such Defaulting Bank’s Pro Rata Share Bank of the LC Obligation is cash collateralized and/or reallocated; and
(d) so long as its obligation to fund any Bank is a Defaulting Bank, no LC Issuer shall be required to issue or Modify any Facility LC, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Banks and/or cash collateral will be provided by the Company in accordance with clause (c) above, and participating interests in any such newly issued or Modified Facility LC shall be allocated among non-Defaulting Banks in a manner consistent with clause(c)(i) above (and Defaulting Banks shall not participate therein).
(e) If (i) a Bankruptcy Event with respect to a Parent portion of any Bank shall occur following the date hereof and for so long as amount owed by such event shall continue or (ii) any LC Issuer has a good faith belief that any Bank has defaulted in fulfilling its obligations under one or more other agreements in which such Bank commits to extend credit, such LC Issuer shall not be required to issue, amend or increase any Facility LC, unless such LC Issuer, as the case may be, shall have entered into arrangements with the Company or such Bank, satisfactory to such LC Issuer, as the case may be, to defease any risk to it in respect of such Defaulting Bank hereunder.
(f) . In the event that the Administrative Agent, the CompanyBorrower, and the Issuing Banks each LC Issuer each agrees agree that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the Banks’ Pro Rata Shares Letters of Credit Outstanding and the LC Obligations Swing Loans outstanding shall be readjusted to reflect the inclusion of such Bank’s 's Revolving Credit Commitment and on such date date, such Bank shall purchase at par such of the Loans of the other Banks as the Administrative Agent shall determine may be necessary in order for such Bank to hold such Loans in accordance with its Pro Rata Share of the Aggregate Commitment; provided, that if the Company cash collateralized any portion of such Defaulting Bank’s Pro Rata Share of the LC Obligations pursuant to Section 4.7(c), such cash shall be returned to the CompanyRatable Share.
Appears in 1 contract
Sources: Credit Agreement (Triumph Group Inc)
Defaulting Banks. Notwithstanding any provision of this Agreement to the contrary, if If any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Commitment Fees shall cease to accrue on the unfunded portion of neither the Commitment of such Defaulting Bank pursuant to Section 2.5(a);
(b) nor the Commitment and Outstanding Credit Exposure Loans of such Defaulting Bank shall not be included in determining whether all Banks or the Majority Required Banks have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.19.05); providedprovided that any waiver, that, except as otherwise provided in Section 10.1, this clause (b) shall not apply to the vote of a Defaulting Bank in the case of an amendment, waiver amendment or other modification requiring the consent of all Banks which affects such Defaulting Bank differently than other affected Banks shall require the consent of such Defaulting Bank; provided further that no waiver, amendment or each modification of the type described in clause (i), (ii) or (iii) of Section 9.05 may be made without the written consent of any Defaulting Bank directly affected thereby;
(cb) the Company may, at its sole expense, upon notice to such Defaulting Bank and the Administrative Agent, require such Defaulting Bank to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in Section 9.06, with the Company or the replacement Bank paying the processing and recording fee), all of its interests, rights and obligations under this Agreement to an Assignee that shall assume such obligations (which Assignee may be another Bank, if any LC Obligations exist at the time a Bank becomes a Defaulting Bank then:
accepts such assignment); provided that (i) so long as no Default or Event the Company shall have received the prior written consent of Default shall be continuing immediately before or after giving effect the Administrative Agent to such reallocation, all or any part of such LC Obligation shall be reallocated among the non-Defaulting Banks in accordance with their respective Pro Rata Share but only assignment (to the extent that (x) the sum of all non-Defaulting Banks’ Outstanding Credit Exposure does such consent would otherwise be required pursuant to Section 9.06), which consent shall not exceed the total of all non-Defaulting Banks’ Commitmentsunreasonably be withheld, (y) no Bank’s Outstanding Credit Exposure shall exceed its Commitment delayed or conditioned, and (zii) such Defaulting Bank shall have received payment of an amount equal to the conditions set forth in Section 11.2 are satisfied at outstanding principal of its Loans, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the Assignee (to the extent of such timeoutstanding principal and accrued interest and fees) or the Company;
(iic) if facility fees shall cease to accrue on the reallocation described in subclause (i) above cannot, or can only partially, be effected, the Company shall within one (1) Business Day following notice by the Agent, cash collateralize for the benefit unused portion of the relevant LC Issuer such Defaulting Bank’s Pro Rata Share Commitment of the LC Obligations (after giving effect to any partial reallocation pursuant to subclause (i) above) in accordance with the procedures set forth in Section 9.2 for so long as such LC Obligation is outstanding;
(iii) if the Company cash collateralizes any portion of such Defaulting Bank’s Pro Rata Share of the LC Obligations pursuant this clause (c), the Company shall not be required to pay any fees to such Defaulting Bank pursuant to Section 3.4 with respect 2.08;
(d) notwithstanding any contrary provision in this Agreement, the Company may (i) prepay, without penalty or premium, the Loans made by a Defaulting Bank and (ii) terminate the unused amount of the Commitment of a Defaulting Bank, in each case, (x) without pro rata prepayment of Loans of other Banks or pro rata termination of Commitments of other Banks and (y) upon not less than two Domestic Business Days’ prior notice to the Administrative Agent (which will promptly notify the Banks thereof), it being understood that such prepayment and termination will not be deemed to be a waiver or release of any claim the Company or the Administrative Agent may have against such Defaulting Bank’s Pro Rata Share of the LC Obligations during the period such Defaulting Bank’s Pro Rata Share of the LC Obligations is cash collateralized;; and
(ive) if the non-Defaulting Banks’ Pro Rata Share of the LC Obligations is reallocated pursuant to nothing in this clause (c), then the fees payable to the Banks pursuant to Section 2.5(a) and Section 3.4 shall be adjusted in accordance with such non-Defaulting Banks’ Pro Rata Shares; or
(v) if any Defaulting Bank’s Pro Rata Share of the LC Obligations is neither reallocated nor cash collateralized pursuant to this clause (c), then, without prejudice to affect any rights or remedies of the Company may have against any LC Issuer or any Bank hereunder, all fees that otherwise would have been payable to such Defaulting Bank (solely with respect to the portion of such Defaulting Bank’s Commitment that was utilized by such LC Obligations) and LC Fees payable under Section 3.4 with respect to such Defaulting Bank’s Pro Rata Share of the LC Obligations shall be payable to the applicable LC Issuer until such Defaulting Bank’s Pro Rata Share of the LC Obligation is cash collateralized and/or reallocated; and
(d) so long as any Bank is a Defaulting Bank, no LC Issuer shall be required to issue or Modify any Facility LC, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Banks and/or cash collateral will be provided by the Company in accordance with clause (c) above, and participating interests in any such newly issued or Modified Facility LC shall be allocated among non-Defaulting Banks in a manner consistent with clause(c)(i) above (and Defaulting Banks shall not participate therein).
(e) If (i) a Bankruptcy Event with respect to a Parent of any Bank shall occur following the date hereof and for so long as such event shall continue or (ii) any LC Issuer has a good faith belief that any Bank has defaulted in fulfilling its obligations under one or more other agreements in which such Bank commits to extend credit, such LC Issuer shall not be required to issue, amend or increase any Facility LC, unless such LC Issuer, as the case may be, shall have entered into arrangements with the Company or such Bank, satisfactory to such LC Issuer, as the case may be, to defease any risk to it in respect of such Bank hereunder.
(f) . In the event and on the date that the Agent, Administrative Agent and the Company, and Company each LC Issuer each agrees agree that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the Banks’ Pro Rata Shares of the LC Obligations shall be readjusted to reflect the inclusion of such Bank’s Commitment and on such date such Bank shall purchase at par such of the Loans of the other Banks as the Administrative Agent shall determine may be necessary in order for such Bank to hold such Loans in accordance with its Pro Rata Share of the Aggregate Commitment; provided, that if the Company cash collateralized any portion of Commitment and such Bank shall no longer be a Defaulting Bank’s Pro Rata Share of the LC Obligations pursuant to Section 4.7(c), such cash shall be returned to the Company.
Appears in 1 contract
Sources: Five Year Credit Agreement (Rockwell Automation Inc)
Defaulting Banks. Notwithstanding any provision of this Agreement to the contrary, if any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Commitment Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Bank pursuant to Section 2.5(a);
(b) the Commitment and Outstanding Credit Exposure of such Defaulting Bank shall not be included in determining whether the Majority Banks have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.1); provided, that, except as otherwise provided in Section 10.1, that this clause (b) shall not apply to the vote of a Defaulting Bank in the case of an amendment, waiver or other modification requiring the consent of such Bank or each Bank directly affected thereby;)
(c) if any LC Obligations exist at the time a Bank becomes a Defaulting Bank then:
(i) so long as no Default or Event of Default shall be continuing immediately before or after giving effect to such reallocation, all or any part of such LC Obligation shall be reallocated among the non-Defaulting Banks in accordance with their respective Pro Rata Share but only to the extent that (x) the sum of all non-Defaulting Banks’ Outstanding Credit Exposure does not exceed the total of all non-Defaulting Banks’ Commitments, (y) no Bank’s Outstanding Credit Exposure shall exceed its Commitment and (z) the conditions set forth in Section 11.2 are satisfied at such time;
(ii) if the reallocation described in subclause (i) above cannot, or can only partially, be effected, the Company shall within one (1) Business Day following notice by the Agent, cash collateralize for the benefit of the relevant LC Issuer such Defaulting Bank’s Pro Rata Share of the LC Obligations (after giving effect to any partial reallocation pursuant to subclause (i) above) in accordance with the procedures set forth in Section 9.2 for so long as such LC Obligation is outstanding;
(iii) if the Company cash collateralizes any portion of such Defaulting Bank’s Pro Rata Share of the LC Obligations pursuant this clause (c), the Company shall not be required to pay any fees to such Defaulting Bank pursuant to Section 3.4 with respect to such Defaulting Bank’s Pro Rata Share of the LC Obligations during the period such Defaulting Bank’s Pro Rata Share of the LC Obligations is cash collateralized;
(iv) if the non-Defaulting Banks’ Pro Rata Share of the LC Obligations is reallocated pursuant to this clause (c), then the fees payable to the Banks pursuant to Section 2.5(a) and Section 3.4 shall be adjusted in accordance with such non-Defaulting Banks’ Pro Rata Shares; or
(v) if any Defaulting Bank’s Pro Rata Share of the LC Obligations is neither reallocated nor cash collateralized pursuant to this clause (c), then, without prejudice to any rights or remedies of any LC Issuer or any Bank hereunder, all fees that otherwise would have been payable to such Defaulting Bank (solely with respect to the portion of such Defaulting Bank’s Commitment that was utilized by such LC Obligations) and LC Fees payable under Section 3.4 with respect to such Defaulting Bank’s Pro Rata Share of the LC Obligations shall be payable to the applicable LC Issuer until such Defaulting Bank’s Pro Rata Share of the LC Obligation is cash collateralized and/or reallocated; and
(d) so long as any Bank is a Defaulting Bank, no LC Issuer shall be required to issue or Modify any Facility LC, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Banks and/or cash collateral will be provided by the Company in accordance with clause (c) above, and participating interests in any such newly issued or Modified Facility LC shall be allocated among non-Defaulting Banks in a manner consistent with clause(c)(i) above (and Defaulting Banks shall not participate therein).
(e) If (i) a Bankruptcy Event with respect to a Parent of any Bank shall occur following the date hereof and for so long as such event shall continue or (ii) any LC Issuer has a good faith belief that any Bank has defaulted in fulfilling its obligations under one or more other agreements in which such Bank commits to extend credit, such LC Issuer shall not be required to issue, amend or increase any Facility LC, unless such LC Issuer, as the case may be, shall have entered into arrangements with the Company or such Bank, satisfactory to such LC Issuer, as the case may be, to defease any risk to it in respect of such Bank hereunder.
(f) In the event that the Agent, the Company, and each LC Issuer each agrees that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the Banks’ Pro Rata Shares of the LC Obligations shall be readjusted to reflect the inclusion of such Bank’s Commitment and on such date such Bank shall purchase at par such of the Loans of the other Banks as the Agent shall determine may be necessary in order for such Bank to hold such Loans in accordance with its Pro Rata Share of the Aggregate Commitment; provided, that if the Company cash collateralized any portion of such Defaulting Bank’s Pro Rata Share of the LC Obligations pursuant to Section 4.7(c), such cash shall be returned to the Company.
Appears in 1 contract
Defaulting Banks. Notwithstanding any provision of this Agreement or any other Loan Document to the contrary, if any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Commitment Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Bank pursuant to Section 2.5(a3.2(a);
(b) the Commitment and Outstanding Extensions of Credit Exposure of such Defaulting Bank shall not be included in determining whether all Banks (or each Bank) or the Majority Banks have taken or may take any action hereunder (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 10.1); provided, that, except as otherwise provided in Section 10.1, that this clause (b) shall not apply to the vote of a Defaulting Bank in the case of an amendment, waiver or other modification requiring the consent of such Bank or each Bank directly affected thereby if such Bank is an affected Bank; provided, further, that there shall not be any amendment, modification or waiver (i) of any provision of Section 4.2 or Section 10.1 in a manner that would alter the pro rata sharing of payments required thereby, or (ii) causing the reduction of the percentage specified in the definition of Majority Banks, or (iii) causing the consent to the assignment or transfer by the Borrower of any of its respective rights and obligations under this Agreement and the other Loan Documents, in each case without the consent of such Bank;
(c) if any LC Swingline Exposure or L/C Obligations exist at the time a such Bank becomes a Defaulting Bank then:;
(i) so long as no Default or Event of Default shall be continuing immediately before or after giving effect to such reallocation, all or any part of the Swingline Exposure and L/C Exposure of such LC Obligation Defaulting Bank shall be reallocated (effective as of the date such Bank becomes a Defaulting Bank) among the non-Defaulting Banks in accordance with their respective Pro Rata Share Revolving Percentages, but only to the extent that (x) the sum of all non-Defaulting Banks’ Outstanding Extensions of Credit plus such Defaulting Bank’s Swingline Exposure and L/C Exposure does not exceed the total of all non-Defaulting Banks’ Commitments, (y) no Bank’s Outstanding Credit Exposure shall exceed its Commitment and (z) the conditions set forth in Section 11.2 are satisfied at such time;
(ii) if the reallocation described in subclause clause (i) above cannot, or can only partially, be effected, the Company shall Borrower shall, within one (1) two Business Day Days following the Borrower’s receipt of written notice by the Administrative Agent, (x) first, prepay such Defaulting Bank’s Swingline Exposure and (y) second cash collateralize for the benefit of the relevant LC Issuer applicable Issuing Banks only the Borrower’s obligations corresponding to such Defaulting Bank’s Pro Rata Share of the LC Obligations L/C Exposure (after giving effect to any partial reallocation pursuant to subclause clause (i) above) in accordance with the procedures set forth in Section 9.2 8.2 for so long as such LC Obligation L/C Exposure is outstanding;
(iii) if the Company Borrower cash collateralizes any portion of such Defaulting Bank’s Pro Rata Share of the LC Obligations L/C Exposure pursuant this to clause (c)ii) above, the Company Borrower shall not be required to pay any fees to such Defaulting Bank pursuant to Section 3.4 2.5(c) with respect to such Defaulting Bank’s Pro Rata Share of the LC Obligations L/C Exposure during the period such Defaulting Bank’s Pro Rata Share of the LC Obligations L/C Exposure is cash collateralized;
(iv) if all or any portion of such Defaulting Bank’s L/C Exposure is reallocated pursuant to clause (i) above, then the Letter of Credit participation fees that otherwise would have been payable to such Defaulting Bank pursuant to Section 2.5(c)(i) with respect to such Defaulting Bank’s reallocated L/C Exposure shall be payable to the non-Defaulting Banks’ Pro Rata Share of the LC Obligations is reallocated pursuant to this clause (c), then the fees payable to the Banks pursuant to Section 2.5(a) and Section 3.4 shall be adjusted in accordance with such non-Defaulting Banks’ Pro Rata SharesRevolving Percentages after giving effect to such reallocation; orand
(v) if all or any portion of such Defaulting Bank’s Pro Rata Share of the LC Obligations L/C Exposure is neither reallocated nor cash collateralized pursuant to this clause (c)i) or (ii) above, then, without prejudice to any rights or remedies of any LC Issuer Issuing Bank or any other Bank hereunder, all Letter of Credit participation fees that otherwise would have been payable to such Defaulting Bank (solely with respect to the portion of such Defaulting Bank’s Commitment that was utilized by such LC Obligations) and LC Fees payable under Section 3.4 2.5(c)(i) with respect to such Defaulting Bank’s Pro Rata Share of the LC Obligations unreallocated L/C Exposure shall be payable to the applicable LC Issuer Issuing Banks, ratably based on the portion of such L/C Exposure attributable to Letters of Credit issued by each Issuing Bank, until and to the extent that such Defaulting Bank’s Pro Rata Share of the LC Obligation L/C Exposure is reallocated and/or cash collateralized and/or reallocated; andpursuant to clause (i) or (ii) above;
(d) so long as any such Bank is a Defaulting Bank, the Swingline Lender shall not be required to fund any Swingline Loan and no LC Issuer Issuing Bank shall be required to issue issue, amend or Modify increase any Facility LCLetter of Credit, unless it the Swingline Lender is satisfied that the related exposure in respect of Swingline Loans, and the Issuing Banks are satisfied that the Defaulting Bank’s then outstanding L/C Exposure, will be 100% covered by the Commitments of the non-Defaulting Banks and/or and, to the extent such 100% coverage is not achieved, by cash collateral which will be provided by the Company Borrower in accordance with clause (c) aboveSection 2.8(c), and participating interests in any such newly made Swingline Loan or any newly issued or Modified Facility LC increased Letter of Credit shall be allocated among non-Defaulting Banks in a manner consistent with clause(c)(iSection 2.8(c)(i) above (and such Defaulting Banks Bank shall not participate therein).
(e) . If (i) a Bankruptcy Event or a Bail-In Action with respect to a Parent of any Bank (such Bank, a “Disregarded Bank”) shall occur following the date hereof and for so long as such event shall continue or (ii) continue, the Swingline Lender shall not be required to fund any LC Issuer has a good faith belief that any Swingline Loan and the Issuing Bank has defaulted in fulfilling its obligations under one or more other agreements in which such Bank commits to extend credit, such LC Issuer shall not be required to issue, amend or increase any Facility LCLetter of Credit, unless such LC Issuer, as the case may be, shall have entered into arrangements with Swingline Lender is satisfied that the Company or such Bank, satisfactory to such LC Issuer, as the case may be, to defease any risk to it related exposure in respect of Swingline Loans, and the Issuing Banks are satisfied that the Disregarded Bank’s then outstanding L/C Exposure, will be 100% covered by the Commitments of the non-Disregarded Banks and, to the extent such 100% coverage is not achieved, by cash collateral which will be provided by the Borrower in the manner consistent with Section 2.8(c), and participating interests in any newly made Swingline Loan or any newly issued or increased Letter of Credit shall be allocated among the non-Disregarded Banks in a manner consistent with Section 2.8(c) (and such Disregarded Bank hereunder.
(f) shall not participate therein). In the event that the Administrative Agent, the CompanyBorrower, the Swingline Lender and each LC Issuer the Issuing Banks each agrees that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the Banks’ Pro Rata Shares Swingline Exposures and L/C Exposures of the LC Obligations Banks shall be readjusted to reflect the inclusion of such Bank’s Commitment Commitment, and on such date such Bank shall purchase at par such of the Revolving Loans of the other Banks as the Administrative Agent shall determine may be necessary in order for such Bank to hold such Revolving Loans in accordance with its Pro Rata Share of Revolving Percentage. The rights and remedies against, and with respect to, a Defaulting Bank under this Section 2.8 are in addition to, and cumulative and not in limitation of, all other rights and remedies that the Aggregate Commitment; providedAdministrative Agent and each Bank, that if each Issuing Bank, the Company cash collateralized Swingline Lender or the Borrower may at any portion of time have against, or with respect to, such Defaulting Bank’s Pro Rata Share of the LC Obligations pursuant to Section 4.7(c), such cash shall be returned to the Company.
Appears in 1 contract
Sources: Credit Agreement (Centerpoint Energy Resources Corp)
Defaulting Banks. Notwithstanding any provision of this Agreement to the contrary, if any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(ai) Commitment Fees fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Bank pursuant to Section 2.5(a)2.3 [Commitment Fees];
(bii) the Commitment and Outstanding Credit Exposure outstanding Loans of such Defaulting Bank shall not be included in determining whether the Majority Required Banks have taken or may take any action hereunder (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 10.111.1 [Modifications, Amendments or Waivers]); provided, that, except as otherwise provided in Section 10.1, that this clause (bii) shall not apply to the vote of a Defaulting Bank in the case of an amendment, waiver or other modification requiring the consent of such Bank or each Bank directly affected thereby;
(ciii) if any LC Swing Loans are outstanding or any Letter of Credit Obligations exist at the time a such Bank becomes a Defaulting Bank Bank, then:
(ia) so long as no Default or Event of Default shall be continuing immediately before or after giving effect to such reallocation, all or any part of the outstanding Swing Loans and Letter of Credit Obligations of such LC Obligation Defaulting Bank shall be reallocated among the non-Defaulting Banks in accordance with their respective Pro Rata Share Ratable Shares but only to the extent that (x) the sum of all non-Defaulting Banks’ Outstanding Credit Exposure Revolving Facility Usage does not exceed the total of all non-Defaulting Banks’ Bank's Revolving Credit Commitments, and (y) no Bank’s Outstanding Credit Exposure shall exceed its Commitment Potential Default or Event of Default has occurred and (z) the conditions set forth in Section 11.2 are satisfied is continuing at such time;
(ii) if the reallocation described in subclause (i) above cannot, or can only partially, be effected, the Company shall within one (1) Business Day following notice by the Agent, cash collateralize for the benefit of the relevant LC Issuer such Defaulting Bank’s Pro Rata Share of the LC Obligations (after giving effect to any partial reallocation pursuant to subclause (i) above) in accordance with the procedures set forth in Section 9.2 for so long as such LC Obligation is outstanding;
(iii) if the Company cash collateralizes any portion of such Defaulting Bank’s Pro Rata Share of the LC Obligations pursuant this clause (c), the Company shall not be required to pay any fees to such Defaulting Bank pursuant to Section 3.4 with respect to such Defaulting Bank’s Pro Rata Share of the LC Obligations during the period such Defaulting Bank’s Pro Rata Share of the LC Obligations is cash collateralized;
(iv) if the non-Defaulting Banks’ Pro Rata Share of the LC Obligations is reallocated pursuant to this clause (c), then the fees payable to the Banks pursuant to Section 2.5(a) and Section 3.4 shall be adjusted in accordance with such non-Defaulting Banks’ Pro Rata Shares; or
(v) if any Defaulting Bank’s Pro Rata Share of the LC Obligations is neither reallocated nor cash collateralized pursuant to this clause (c), then, without prejudice to any rights or remedies of any LC Issuer or any Bank hereunder, all fees that otherwise would have been payable to such Defaulting Bank (solely with respect to the portion of such Defaulting Bank’s Commitment that was utilized by such LC Obligations) and LC Fees payable under Section 3.4 with respect to such Defaulting Bank’s Pro Rata Share of the LC Obligations shall be payable to the applicable LC Issuer until such Defaulting Bank’s Pro Rata Share of the LC Obligation is cash collateralized and/or reallocated; and
(d) so long as any Bank is a Defaulting Bank, no LC Issuer shall be required to issue or Modify any Facility LC, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Banks and/or cash collateral will be provided by the Company in accordance with clause (c) above, and participating interests in any such newly issued or Modified Facility LC shall be allocated among non-Defaulting Banks in a manner consistent with clause(c)(i) above (and Defaulting Banks shall not participate therein).
(e) If (i) a Bankruptcy Event with respect to a Parent of any Bank shall occur following the date hereof and for so long as such event shall continue or (ii) any LC Issuer has a good faith belief that any Bank has defaulted in fulfilling its obligations under one or more other agreements in which such Bank commits to extend credit, such LC Issuer shall not be required to issue, amend or increase any Facility LC, unless such LC Issuer, as the case may be, shall have entered into arrangements with the Company or such Bank, satisfactory to such LC Issuer, as the case may be, to defease any risk to it in respect of such Bank hereunder.
(f) In the event that the Agent, the Company, and each LC Issuer each agrees that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the Banks’ Pro Rata Shares of the LC Obligations shall be readjusted to reflect the inclusion of such Bank’s Commitment and on such date such Bank shall purchase at par such of the Loans of the other Banks as the Agent shall determine may be necessary in order for such Bank to hold such Loans in accordance with its Pro Rata Share of the Aggregate Commitment; provided, that if the Company cash collateralized any portion of such Defaulting Bank’s Pro Rata Share of the LC Obligations pursuant to Section 4.7(c), such cash shall be returned to the Company.
Appears in 1 contract
Defaulting Banks. Notwithstanding any provision of this Agreement or any other Loan Document to the contrary, if any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Commitment Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Bank pursuant to Section 2.5(a3.2(a);
(b) the Commitment and Outstanding Extensions of Credit Exposure of such Defaulting Bank shall not be included in determining whether all Banks (or each Bank) or the Majority Banks have taken or may take any action hereunder (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 10.111.1); provided, that, except as otherwise provided in Section 10.1, that this clause (b) shall not apply to the vote of a Defaulting Bank in the case of an amendment, waiver or other modification requiring the consent of such Bank or each Bank directly affected thereby if such Bank is an affected Bank; provided, further, that there shall not be any amendment, modification or waiver (i) of any provision of Section 5.2 or Section 11.1 in a manner that would alter the pro rata sharing of payments required thereby, or (ii) causing the reduction of the percentage specified in the definition of Majority Banks, or (iii) causing the consent to the assignment or transfer by the Borrower of any of its respective rights and obligations under this Agreement and the other Loan Documents, in each case without the consent of such Bank;
(c) if any LC L/C Obligations exist at the time a such Bank becomes a Defaulting Bank then:;
(i) so long as no Default or Event of Default shall be continuing immediately before or after giving effect to such reallocation, all or any part of the L/C Exposure of such LC Obligation Defaulting Bank shall be reallocated (effective as of the date such Bank becomes a Defaulting Bank) among the non-Defaulting Banks in accordance with their respective Pro Rata Share Revolving Percentages, but only to the extent that (x) the sum of all non-Defaulting Banks’ Outstanding Extensions of Credit plus such Defaulting Bank’s L/C Exposure does not exceed the total of all non-Defaulting Banks’ Commitments, (y) no Bank’s Outstanding Credit Exposure shall exceed its Commitment and (z) the conditions set forth in Section 11.2 are satisfied at such time;
(ii) if the reallocation described in subclause clause (i) above cannot, or can only partially, be effected, the Company shall Borrower shall, within one (1) two Business Day Days following the Borrower’s receipt of written notice by the Administrative Agent, cash collateralize for the benefit of the relevant LC Issuer applicable Issuing Banks only the Borrower’s obligations corresponding to such Defaulting Bank’s Pro Rata Share of the LC Obligations L/C Exposure (after giving effect to any partial reallocation pursuant to subclause clause (i) above) in accordance with the procedures set forth in Section 9.2 for so long as such LC Obligation L/C Exposure is outstanding;
(iii) if the Company Borrower cash collateralizes any portion of such Defaulting Bank’s Pro Rata Share of the LC Obligations L/C Exposure pursuant this to clause (c)ii) above, the Company Borrower shall not be required to pay any fees to such Defaulting Bank pursuant to Section 3.4 2.5(c) with respect to such Defaulting Bank’s Pro Rata Share of the LC Obligations L/C Exposure during the period such Defaulting Bank’s Pro Rata Share of the LC Obligations L/C Exposure is cash collateralized;
(iv) if all or any portion of such Defaulting Bank’s L/C Exposure is reallocated pursuant to clause (i) above, then the Letter of Credit participation fees that otherwise would have been payable to such Defaulting Bank pursuant to Section 2.5(c)(i) with respect to such Defaulting Bank’s reallocated L/C Exposure shall be payable to the non-Defaulting Banks’ Pro Rata Share of the LC Obligations is reallocated pursuant to this clause (c), then the fees payable to the Banks pursuant to Section 2.5(a) and Section 3.4 shall be adjusted in accordance with such non-Defaulting Banks’ Pro Rata SharesRevolving Percentages after giving effect to such reallocation; orand
(v) if all or any portion of such Defaulting Bank’s Pro Rata Share of the LC Obligations L/C Exposure is neither reallocated nor cash collateralized pursuant to this clause (c)i) or (ii) above, then, without prejudice to any rights or remedies of any LC Issuer Issuing Bank or any other Bank hereunder, all Letter of Credit participation fees that otherwise would have been payable to such Defaulting Bank (solely with respect to the portion of such Defaulting Bank’s Commitment that was utilized by such LC Obligations) and LC Fees payable under Section 3.4 2.5(c)(i) with respect to such Defaulting Bank’s Pro Rata Share of the LC Obligations unreallocated L/C Exposure shall be payable to the applicable LC Issuer Issuing Banks, ratably based on the portion of such L/C Exposure attributable to Letters of Credit issued by each Issuing Bank, until and to the extent that such Defaulting Bank’s Pro Rata Share of the LC Obligation L/C Exposure is reallocated and/or cash collateralized and/or reallocated; andpursuant to clause (i) or (ii) above;
(d) so long as any such Bank is a Defaulting Bank, no LC Issuer Issuing Bank shall be required to issue issue, amend or Modify increase any Facility LCLetter of Credit, unless it is the Issuing Banks are satisfied that the related exposure Defaulting Bank’s then outstanding L/C Exposure, will be 100% covered by the Commitments of the non-Defaulting Banks and/or and, to the extent such 100% coverage is not achieved, by cash collateral which will be provided by the Company Borrower in accordance with clause (c) aboveSection 2.8(c), and participating interests in any such newly issued or Modified Facility LC increased Letter of Credit shall be allocated among non-Defaulting Banks in a manner consistent with clause(c)(iSection 2.8(c)(i) above (and such Defaulting Banks Bank shall not participate therein).
(e) If (i) a Bankruptcy Event or a Bail-In Action with respect to a Parent of any Bank shall occur following the date hereof and for so long as such event shall continue or (ii) any LC Issuer the Issuing Bank has a good faith belief that any Bank has defaulted in fulfilling its obligations under one or more other agreements in which to extend credit generally (such Bank commits to extend creditreferenced in clauses (i) and (ii), such LC Issuer a “Disregarded Bank”), the Issuing Bank shall not be required to issue, amend or increase any Facility LCLetter of Credit, unless such LC Issuerthe Issuing Banks are satisfied that the Disregarded Bank’s then outstanding L/C Exposure, as will be 100% covered by the case may be, shall have entered into arrangements with Commitments of the Company or such Bank, satisfactory to such LC Issuer, as the case may benon-Disregarded Banks and, to defease the extent such 100% coverage is not achieved, by cash collateral which will be provided by the Borrower in the manner consistent with Section 2.8(c), and participating interests in any risk to it newly issued or increased Letter of Credit shall be allocated among the non-Disregarded Banks in respect of a manner consistent with Section 2.8(c) (and such Disregarded Bank hereunder.
(f) shall not participate therein). In the event that the Administrative Agent, the Company, Borrower and each LC Issuer the Issuing Banks each agrees that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the Banks’ Pro Rata Shares L/C Exposures of the LC Obligations Banks shall be readjusted to reflect the inclusion of such Bank’s Commitment Commitment, and on such date such Bank shall purchase at par such of the Revolving Loans of the other Banks as the Administrative Agent shall determine may be necessary in order for such Bank to hold such Revolving Loans in accordance with its Pro Rata Share of Revolving Percentage. The rights and remedies against, and with respect to, a Defaulting Bank under this Section 2.8 are in addition to, and cumulative and not in limitation of, all other rights and remedies that the Aggregate Commitment; providedAdministrative Agent and each Bank, that if each Issuing Bank or the Company cash collateralized Borrower may at any portion of time have against, or with respect to, such Defaulting Bank’s Pro Rata Share of the LC Obligations pursuant to Section 4.7(c), such cash shall be returned to the Company.
Appears in 1 contract
Sources: Credit Agreement (Centerpoint Energy Resources Corp)
Defaulting Banks. (a) Notwithstanding any provision of this Agreement to the contrary, if one or more Banks become Defaulting Banks, then, upon notice to such effect by the Administrative Agent (which notice shall be given promptly after the Administrative Agent becomes aware that any Bank becomes shall have become a Defaulting Bank, then including as a result of being advised thereof by any Issuing Bank or the Lead Borrower), the following provisions shall apply for so long as any such Bank is a Defaulting Bank:
(ai) Commitment Fees no commitment fee shall cease to accrue on the unfunded portion unused amount of the any Commitment of such any Defaulting Bank pursuant to Section 2.5(a2.8(a);
(bii) the Commitment and Outstanding Credit Revolving Exposure of such each Defaulting Bank shall not be included disregarded in determining whether the Majority requisite Banks shall have taken or may take any action hereunder or under any other Loan Document (including any consent to any waiver, amendment or waiver other modification pursuant to Section 10.19.5); provided that any waiver, amendment, or other modification that, disregarding the effect of this clause (ii), requires the consent of each Bank directly affected thereby pursuant to clause (a), (b) or (c) of Section 9.5 shall continue to require the consent of each Defaulting Bank directly affected thereby in accordance with the terms hereof; provided, thatfurther, except as otherwise provided in that any waiver, amendment or other modification of this Section 10.12.20(a)(ii) or clause (a), this clause (b) shall not apply to the vote or (c) of Section 9.5 at any time that a Bank is a Defaulting Bank in the case of an amendment, waiver or other modification requiring shall require the consent of such Defaulting Bank or each if such Defaulting Bank would be directly adversely affected thereby;
(ciii) if any LC Obligations exist Exposure exists at the time a any Bank becomes a Defaulting Bank (each Letter of Credit to which such LC Exposure is attributable being referred to as a “Reallocated Letter of Credit”), then:
(iA) so long as no Default or Event subject to clause (B) below, the participation of Default each Non-Defaulting Bank in each Reallocated Letter of Credit shall be continuing immediately before adjusted to be determined under Section 2.18(d) on the basis of such Bank’s Adjusted Applicable Percentage (and all references in Section 2.18 to “Applicable Percentage” shall be deemed to be references to “Adjusted Applicable Percentage”);
(B) notwithstanding the foregoing:
(1) if any Bank that becomes a Defaulting Bank shall be an Issuing Bank or an Affiliate thereof, no adjustment shall be made pursuant to clause (A) above with respect to participations in any Letter of Credit issued by such Issuing Bank;
(2) if all the Defaulting Banks’ Applicable Percentage of the LC Exposure attributable to the Reallocated Letters of Credit (the “Defaulting Bank LC Exposure”) exceeds the unused portion of the Commitments of the Non-Defaulting Banks as of the time the adjustments are to be made pursuant to clause (A) above (such unused portion being referred to as the “Maximum Incremental Participation Amount”), then the incremental amount of participations acquired by the Non-Defaulting Banks under clause (A) above (the “Incremental LC Participations”) shall not exceed at any time the Maximum Incremental Participation Amount;
(3) adjustments under Section 2.20(a)(iii)(A) and (B) above shall only be made to the extent that, after giving effect to such reallocationadjustments, all the Revolving Exposure of any Non-Defaulting Bank shall not exceed its Commitment; and
(4) no adjustment shall be made under Section 2.20(a)(iii)(A) or (B) above if, at the time such adjustment is made, an Event of Default has occurred and is continuing;
(C) if the Defaulting Bank LC Exposure exceeds the Maximum Incremental Participation Amount, then the applicable Borrower or applicable Additional Borrower shall, within five Domestic Business Days after receipt of written notice to that effect from the Administrative Agent, cash collateralize the Reallocated Letters of Credit (in a manner and under documentation reasonably satisfactory to the Administrative Agent) in an aggregate amount equal to the excess, if any, of the Defaulting Bank LC Exposure over the Maximum Incremental Participation Amount or, if agreed to by the applicable Issuing Bank, enter into other arrangements with respect to the Reallocated Letters of Credit on terms mutually agreed between such Issuing Bank and the applicable Borrower or applicable Additional Borrower;
(D) if any part Reallocated Letter of Credit shall have been cash collateralized by the applicable Borrower or applicable Additional Borrower pursuant to clause (C) above, then (x) the applicable Borrower or applicable Additional Borrower shall not be required to pay any letter of credit participation fees pursuant to Section 2.8(b) with respect to the portion of such LC Obligation Reallocated Letter of Credit that is so cash collateralized and (y) to the extent any letter of credit participation fees are not required to be paid by reason of clause (x) above, the reduction in the amount of such fees shall be reallocated among allocated to the nonDefaulting Banks;
(E) if an adjustment shall have been made pursuant to clause (A) above to the participations of the Non-Defaulting Banks in Reallocated Letters of Credit, then the letter of credit participation fees that would otherwise have been payable to the Banks that are Defaulting Banks pursuant to Section 2.8(b) with respect to the portion of such Reallocated Letters of Credit equal to the Incremental LC Participations therein shall instead accrue for the accounts of, and be payable to, the Banks that are Non-Defaulting Banks in accordance with their respective Pro Rata Share but only to Adjusted Applicable Percentages;
(F) if the extent that (x) Defaulting Bank LC Exposure at any time shall exceed the sum of all non-Defaulting Banks’ Outstanding Credit Exposure does not exceed the total of all non-Defaulting Banks’ Commitments, (y) no Bank’s Outstanding Credit Exposure shall exceed its Commitment and (z) the conditions set forth in Section 11.2 are satisfied Incremental LC Participations at such time;
(ii) if time and the reallocation described in subclause (i) above cannot, or can only partially, be effected, the Company shall within one (1) Business Day following notice by the Agent, cash collateralize for the benefit portion of the relevant LC Issuer Reallocated Letters of Credit cash collateralized at such Defaulting Bank’s Pro Rata Share of the LC Obligations (after giving effect to any partial reallocation time pursuant to subclause clause (iC) above) in accordance with the procedures set forth in Section 9.2 for so long as such LC Obligation is outstanding;
(iii) if the Company cash collateralizes any portion of such Defaulting Bank’s Pro Rata Share of the LC Obligations pursuant this clause (c), the Company shall not be required to pay any fees to such Defaulting Bank pursuant to Section 3.4 with respect to such Defaulting Bank’s Pro Rata Share of the LC Obligations during the period such Defaulting Bank’s Pro Rata Share of the LC Obligations is cash collateralized;
(iv) if the non-Defaulting Banks’ Pro Rata Share of the LC Obligations is reallocated pursuant to this clause (c), then the fees payable to the Banks pursuant to Section 2.5(a) and Section 3.4 shall be adjusted in accordance with such non-Defaulting Banks’ Pro Rata Shares; or
(v) if any Defaulting Bank’s Pro Rata Share of the LC Obligations is neither reallocated nor cash collateralized pursuant to this clause (c), then, without prejudice to any rights or remedies of any LC Issuer Issuing Bank or any Non-Defaulting Bank hereunder, all letter of credit participation fees that otherwise would have been payable to such the Banks that are Defaulting Bank (solely Banks under Section 2.8(b) with respect to the portion of such the Defaulting Bank’s Commitment that was utilized by such Bank LC Obligations) and LC Fees payable under Section 3.4 with respect Exposure equal to such Defaulting Bank’s Pro Rata Share of excess shall instead accrue for the LC Obligations shall account of, and be payable to to, the applicable LC Issuer until such Defaulting Bank’s Pro Rata Share Issuing Bank that shall have issued the Reallocated Letters of the LC Obligation is cash collateralized and/or reallocatedCredit; and
(dG) so long the Revolving Exposure of each Non-Defaulting Bank shall be determined after giving effect to the Incremental LC Participations acquired by such Bank under the foregoing clauses of this clause (iii);
(iv) in the event any Letter of Credit shall be issued or amended to increase the amount thereof, (A) the participations of the Non-Defaulting Banks therein shall be determined in the manner set forth in clause (iii)(A) above, as if such Letter of Credit shall have been a Reallocated Letter of Credit, and (B) letter of credit participation fees that would otherwise have been payable to the Banks that are Defaulting Banks pursuant to Section 2.8(b) in respect of any Bank is a Defaulting Banksuch Letter of Credit shall be subject to clause (iii)(E) above; provided, however, that, notwithstanding anything to the contrary set forth herein, no LC Issuer Issuing Bank shall be required to issue issue, extend, renew or Modify increase the amount of any Facility LC, Letter of Credit unless it is satisfied that the related exposure Defaulting Banks’ Applicable Percentage of the LC Exposure attributable to such Letter of Credit will be 100% entirely covered by the Commitments participations therein of the nonNon-Defaulting Banks and/or cash collateral will be or other arrangements satisfactory to such Issuing Bank provided by the Company in accordance with clause applicable Borrower or applicable Additional Borrower (c) above, and participating interests in any such newly issued or Modified Facility LC shall be allocated among non-Defaulting Banks in a manner consistent with clause(c)(i) above (and Defaulting Banks shall not participate therein).
(e) If (i) a Bankruptcy Event with respect to a Parent of any Bank shall occur following the date hereof and for so long as such event shall continue or (ii) any LC Issuer has a good faith belief that any Bank has defaulted in fulfilling its obligations under one or more other agreements in which such Bank commits to extend credit, such LC Issuer shall not be required to issue, amend or increase any Facility LC, unless such LC Issuer, as the case may be, shall have entered into arrangements with the Company or such Bank, documentation satisfactory to such LC IssuerIssuing Bank); and
(v) any amount payable to or for the account of any Defaulting Bank in its capacity as a Bank hereunder (whether on account of principal, interest, fees or otherwise, and including any amounts payable to such Defaulting Bank pursuant to Sections 2.10 and 2.11, but excluding any amounts payable to such Defaulting Bank pursuant to Sections 2.13, 2.15, 2.17, 8.3 and 9.3) shall, in lieu of being distributed to such Defaulting Bank, be retained by the Administrative Agent in a segregated account and, subject to any applicable requirements of law, (A) be applied, at such time or times as may be determined by the case may beAdministrative Agent, (1) first, to defease the payment of any risk amounts owing by such Defaulting Bank to it the Administrative Agent hereunder, (2) second, to the payment of any amounts owing by such Defaulting Bank to each Issuing Bank in respect of such Defaulting Bank’s participations in Letters of Credit (and to the extent any such amounts shall have been paid by Non-Defaulting Banks as a result of adjustments pursuant to clause (iii) above, to reimburse such Non-Defaulting Banks for such amounts), (3) third, to cash collateralize participation obligations of such Defaulting Bank in respect of outstanding Letters of Credit (with the concurrent release of an equivalent amount any cash collateral or other collateral security, if any, provided by the applicable Borrower pursuant to this Section) and (4) fourth, to the funding of such Defaulting Bank’s Applicable Percentage of any Borrowing in respect of which such Defaulting Bank shall have failed to fund such share as required hereunder, (B) to the extent not applied as aforesaid, be held, if so determined by the Administrative Agent, as cash collateral for funding obligations of such Defaulting Bank in respect of future Loans hereunder, (C) to the extent not applied or held as aforesaid, be applied, pro rata, to the payment of any amounts owing to any Borrower or the Non-Defaulting Banks as a result of any judgment of a court of competent jurisdiction obtained by any Borrower or any Non-Defaulting Bank against such Defaulting Bank as a result of such Defaulting Bank’s breach of its obligations hereunder and (D) to the extent not applied or held as aforesaid, be distributed to such Defaulting Bank or as otherwise directed by a court of competent jurisdiction.
(fb) In the event that the Administrative Agent, the Company, Issuing Banks and each LC Issuer each agrees the Borrowers shall have agreed that a Bank that is a Defaulting Bank has adequately remedied all matters that caused such Bank to be become a Defaulting Bank, then (i) such Bank shall cease to be a Defaulting Bank for all purposes hereof, (ii) the Banks’ Pro Rata Shares obligations of the LC Obligations Banks to purchase participations in Letters of Credit under Section 2.18(d) shall be readjusted to reflect be determined on the inclusion basis of such Bank’s Commitment Banks’ Applicable Percentages and on such date (iii) such Bank shall purchase at par such of the Loans of the other Banks as the Administrative Agent shall determine may to be necessary in order for such Bank the Loans to hold such Loans be held by the Banks in accordance with their Applicable Percentages.
(c) No Commitment of any Bank shall be increased or otherwise affected and, except as otherwise expressly provided in this Section, performance by any Borrower and any Additional Borrower of its Pro Rata Share Obligations hereunder and under the other Loan Documents shall not be excused or otherwise modified as a result of the Aggregate Commitment; providedoperation of this Section. The rights and remedies against a Defaulting Bank under this Section are in addition to other rights and remedies that any Borrower, that if any Additional Borrower, the Company cash collateralized Administrative Agent, the Issuing Banks or any portion of Non-Defaulting Bank may have against such Defaulting Bank’s Pro Rata Share Bank (and, for the avoidance of doubt, each Non-Defaulting Bank shall have a claim against any Defaulting Bank for any losses it may suffer as a result of the LC Obligations pursuant to Section 4.7(coperation of this Section), such cash shall be returned to the Company.
Appears in 1 contract
Defaulting Banks. Notwithstanding any provision of this Agreement to the contrary, if If any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Commitment Fees shall cease to accrue on the unfunded portion of neither the Commitment of such Defaulting Bank pursuant to Section 2.5(a);
(b) nor the Commitment and Outstanding Credit Exposure Loans of such Defaulting Bank shall not be included in determining whether all Banks or the Majority Required Banks have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.19.05); providedprovided that any waiver, that, except as otherwise provided in Section 10.1, this clause (b) shall not apply to the vote of a Defaulting Bank in the case of an amendment, waiver amendment or other modification requiring the consent of all Banks which affects such Defaulting Bank differently than other affected Banks shall require the consent of such Defaulting Bank; provided, further, that no waiver, amendment or each modification of the type described in clauses (a)(i), (ii) or (iii) of Section 9.05 may be made without the written consent of any Defaulting Bank directly affected thereby;
(cb) the Company may, at its sole expense, upon notice to such Defaulting Bank and the Administrative Agent, require such Defaulting Bank to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in Section 9.06, with the Company or the replacement Bank paying the processing and recording fee), all of its interests, rights and obligations under this Agreement to an Assignee that shall assume such obligations (which Assignee may be another Bank, if any LC Obligations exist at the time a Bank becomes a Defaulting Bank then:
accepts such assignment); provided that (i) so long as no Default or Event the Company shall have received the prior written consent of Default shall be continuing immediately before or after giving effect the Administrative Agent to such reallocation, all or any part of such LC Obligation shall be reallocated among the non-Defaulting Banks in accordance with their respective Pro Rata Share but only assignment (to the extent that (x) the sum of all non-Defaulting Banks’ Outstanding Credit Exposure does such consent would otherwise be required pursuant to Section 9.06), which consent shall not exceed the total of all non-Defaulting Banks’ Commitmentsunreasonably be withheld, (y) no Bank’s Outstanding Credit Exposure shall exceed its Commitment delayed or conditioned, and (zii) such Defaulting Bank shall have received payment of an amount equal to the conditions set forth in Section 11.2 are satisfied at outstanding principal of its Loans, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the Assignee (to the extent of such timeoutstanding principal and accrued interest and fees) or the Company;
(iic) if facility fees shall cease to accrue on the reallocation described in subclause (i) above cannot, or can only partially, be effected, the Company shall within one (1) Business Day following notice by the Agent, cash collateralize for the benefit unused portion of the relevant LC Issuer such Defaulting Bank’s Pro Rata Share Commitment of the LC Obligations (after giving effect to any partial reallocation pursuant to subclause (i) above) in accordance with the procedures set forth in Section 9.2 for so long as such LC Obligation is outstanding;
(iii) if the Company cash collateralizes any portion of such Defaulting Bank’s Pro Rata Share of the LC Obligations pursuant this clause (c), the Company shall not be required to pay any fees to such Defaulting Bank pursuant to Section 3.4 with respect 2.08;
(d) notwithstanding any contrary provision in this Agreement, the Company may (i) prepay, without penalty or premium, the Loans made by a Defaulting Bank and (ii) terminate the unused amount of the Commitment of a Defaulting Bank, in each case, (x) without pro rata prepayment of Loans of other Banks or pro rata termination of Commitments of other Banks and (y) upon not less than two Business Days’ prior notice to the Administrative Agent (which will promptly notify the Banks thereof), it being understood that such prepayment and termination will not be deemed to be a waiver or release of any claim the Company or the Administrative Agent may have against such Defaulting Bank’s Pro Rata Share of the LC Obligations during the period such Defaulting Bank’s Pro Rata Share of the LC Obligations is cash collateralized;; and
(ive) if the non-Defaulting Banks’ Pro Rata Share of the LC Obligations is reallocated pursuant to nothing in this clause (c), then the fees payable to the Banks pursuant to Section 2.5(a) and Section 3.4 shall be adjusted in accordance with such non-Defaulting Banks’ Pro Rata Shares; or
(v) if any Defaulting Bank’s Pro Rata Share of the LC Obligations is neither reallocated nor cash collateralized pursuant to this clause (c), then, without prejudice to affect any rights or remedies of the Company may have against any LC Issuer or any Bank hereunder, all fees that otherwise would have been payable to such Defaulting Bank (solely with respect to the portion of such Defaulting Bank’s Commitment that was utilized by such LC Obligations) and LC Fees payable under Section 3.4 with respect to such Defaulting Bank’s Pro Rata Share of the LC Obligations shall be payable to the applicable LC Issuer until such Defaulting Bank’s Pro Rata Share of the LC Obligation is cash collateralized and/or reallocated; and
(d) so long as any Bank is a Defaulting Bank, no LC Issuer shall be required to issue or Modify any Facility LC, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Banks and/or cash collateral will be provided by the Company in accordance with clause (c) above, and participating interests in any such newly issued or Modified Facility LC shall be allocated among non-Defaulting Banks in a manner consistent with clause(c)(i) above (and Defaulting Banks shall not participate therein).
(e) If (i) a Bankruptcy Event with respect to a Parent of any Bank shall occur following the date hereof and for so long as such event shall continue or (ii) any LC Issuer has a good faith belief that any Bank has defaulted in fulfilling its obligations under one or more other agreements in which such Bank commits to extend credit, such LC Issuer shall not be required to issue, amend or increase any Facility LC, unless such LC Issuer, as the case may be, shall have entered into arrangements with the Company or such Bank, satisfactory to such LC Issuer, as the case may be, to defease any risk to it in respect of such Bank hereunder.
(f) . In the event and on the date that the Agent, Administrative Agent and the Company, and Company each LC Issuer each agrees agree that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the Banks’ Pro Rata Shares of the LC Obligations shall be readjusted to reflect the inclusion of such Bank’s Commitment and on such date such Bank shall purchase at par such of the Loans of the other Banks as the Administrative Agent shall determine may be necessary in order for such Bank to hold such Loans in accordance with its Pro Rata Share of the Aggregate Commitment; provided, that if the Company cash collateralized any portion of Commitment and such Bank shall no longer be a Defaulting Bank’s Pro Rata Share of the LC Obligations . Each party hereto agrees that (a) an assignment required pursuant to Section 4.7(c)2.16(b) may be effected pursuant to an Assignment and Assumption Agreement executed by the Company, the Administrative Agent and the assignee and (b) the Bank required to make such cash assignment need not be a party thereto in order for such assignment to be effective and shall be returned deemed to have consented to and be bound by the Companyterms thereof; provided that, following the effectiveness of any such assignment, the other parties to such assignment agree to execute and deliver such documents necessary to evidence such assignment as reasonably requested by the applicable Bank, provided, further, that any such documents shall be without recourse to or warranty by the parties thereto.
Appears in 1 contract
Defaulting Banks. Notwithstanding anything contained in Sections 2.8, 2.9 or any other provision of this Agreement to the contrary, if any Bank becomes a Defaulting BankBank then: all Letters of Credit Outstanding and Swing Loans outstanding at such time, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Commitment Fees shall cease to accrue on the unfunded portion and all Letters of the Commitment of such Defaulting Bank pursuant to Section 2.5(a);
(b) the Commitment and Outstanding Credit Exposure of such Defaulting Bank shall not be included in determining whether the Majority Banks have taken issued or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.1); provided, that, except as otherwise provided in Section 10.1, this clause (b) shall not apply to the vote of Swing Loans made while there exists a Defaulting Bank in the case of an amendment, waiver or other modification requiring the consent of such Bank or each Bank directly affected thereby;
(c) if any LC Obligations exist at the time a Bank becomes a Defaulting Bank then:
(i) so long as no Default or Event of Default shall be continuing immediately before or after giving effect to such reallocation, all or any part of such LC Obligation shall be reallocated among the non-Defaulting Banks in accordance with their respective Pro Rata Share Ratable Shares (such Ratable Shares shall be determined without reference to each Defaulting Bank’s Ratable Share) so long as no Potential Default or Event of Default exists on the date of reallocation and thereafter continues uncured, but only to the extent that (xa) the sum of all non-Defaulting Banks’ Outstanding Revolving Credit Exposure Loans then outstanding plus the sum of such non-Defaulting Banks’ Ratable Share of the Dollar Equivalent NAI-▇▇▇▇▇▇▇▇▇▇v6 Non-Loan Revolving Facility Usage at such time does not exceed the total of all non-Defaulting Banks’ CommitmentsRevolving Credit Commitments and (b) the aggregate obligation of each non-Defaulting Bank to acquire, (y) no refinance or fund any participations in the Defaulting Bank’s portion of Letters of Credit Outstanding Credit Exposure and Swing Loans pursuant to reallocation contemplated above shall not exceed its Commitment and the positive difference between (zi) the conditions set forth in Section 11.2 are satisfied at Revolving Credit Commitment of such time;
Bank minus (ii) if such Bank’s Revolving Credit Loans then outstanding plus such Bank’s Ratable Share of the Dollar Equivalent Non-Loan Revolving Facility Usage. If the reallocation described in subclause (i) above the preceding sentence cannot, or can only partially, be effected, the Company Borrowers shall within one (1) Business Day following notice by the Administrative Agent, cash collateralize for the benefit of the relevant LC Issuer (1) first, prepay outstanding Swing Loans and (2) second, Cash Collateralize such Defaulting Bank’s Pro Rata Share portion of the LC Obligations Letters of Credit Outstanding (in each case, after giving effect to any partial reallocation pursuant to subclause (i) above) in accordance with the procedures set forth in Section 9.2 for so long as immediately preceding sentence). To the extent such LC Obligation is outstanding;
(iii) if the Company cash collateralizes any portion Letters of such Defaulting Bank’s Pro Rata Share of the LC Obligations pursuant this clause (c), the Company shall not be required to pay any fees to such Defaulting Bank pursuant to Section 3.4 with respect to such Defaulting Bank’s Pro Rata Share of the LC Obligations during the period such Defaulting Bank’s Pro Rata Share of the LC Obligations is cash collateralized;
(iv) if the non-Defaulting Banks’ Pro Rata Share of the LC Obligations is Credit Outstanding and Swing Loans are reallocated pursuant to this clause (c)Section 2.14, then the fees payable to the Banks pursuant to Section 2.5(a2.8.2 (but not Section 2.3) and Section 3.4 shall be adjusted in accordance with such non-Defaulting Banks’ Pro Rata Ratable Shares; or
(v) if any . To the extent a portion of the Defaulting Bank’s Pro Rata Share Letters of Credit outstanding are Cash Collateralized pursuant to clause (2) above, the LC Obligations is neither Borrowers shall not be obligated to pay any fees to or for the account of such Defaulting Bank pursuant to Section 2.8.2 with respect to such Defaulting Bank’s Letters of Credit Outstanding during the period such Defaulting Bank’s Letters of Credit Outstanding are Cash Collateralized. To the extent such Letters of Credit Outstanding are not reallocated nor cash collateralized pursuant to this clause (c)Section 2.14, or the Defaulting Bank’s Ratable Share of Letters of Credit Outstanding have not been Cash Collateralized, then, without prejudice to any rights or remedies of any LC Issuer the Issuing Bank or any Bank hereunder, all fees Commitment Fees that otherwise would have been payable to such Defaulting Bank (solely with respect to the portion of such Defaulting Bank’s Commitment that was utilized by such LC ObligationsLetters of Credit Outstanding) and LC Letter of Credit Fees payable under Section 3.4 with respect to such Defaulting Bank’s Pro Rata Ratable Share of the LC Obligations Letters of Credit Outstanding shall be payable to the applicable LC Issuer until such Issuing Bank. Subject to Section 11.23, nothing contained in this Section or elsewhere in this Agreement and no reallocation of any Defaulting Bank’s Pro Rata Ratable Share of the LC Obligation is cash collateralized and/or reallocated; and
(d) so long as any obligation hereunder shall relieve such Defaulting Bank is a Defaulting Bank, no LC Issuer shall be required of its obligation to issue or Modify fund any Facility LC, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Banks and/or cash collateral will be provided by the Company in accordance with clause (c) above, and participating interests in any such newly issued or Modified Facility LC shall be allocated among non-Defaulting Banks in a manner consistent with clause(c)(i) above (and Defaulting Banks shall not participate therein).
(e) If (i) a Bankruptcy Event with respect to a Parent portion of any Bank shall occur following the date hereof and for so long as amount owed by such event shall continue or (ii) any LC Issuer has a good faith belief that any Bank has defaulted in fulfilling its obligations under one or more other agreements in which such Bank commits to extend credit, such LC Issuer shall not be required to issue, amend or increase any Facility LC, unless such LC Issuer, as the case may be, shall have entered into arrangements with the Company or such Bank, satisfactory to such LC Issuer, as the case may be, to defease any risk to it in respect of such Defaulting Bank hereunder.
(f) . In the event that the Administrative Agent, the CompanyBorrower, and the Issuing Banks each LC Issuer each agrees agree that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the Banks’ Pro Rata Shares Letters of Credit Outstanding and the LC Obligations Swing Loans outstanding shall be readjusted to reflect the inclusion of such Bank’s Revolving Credit Commitment and on such date date, such Bank shall purchase at par such of the Loans of the other Banks as the Administrative Agent shall determine may be necessary in order for such Bank to hold such Loans in accordance with its Pro Rata Share of the Aggregate Commitment; provided, that if the Company cash collateralized any portion of such Defaulting Bank’s Pro Rata Share of the LC Obligations pursuant to Section 4.7(c), such cash shall be returned to the CompanyRatable Share.
Appears in 1 contract
Sources: Credit Agreement (Triumph Group Inc)
Defaulting Banks. Notwithstanding any provision of this Agreement to the contrary, if any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Commitment Facility Fees shall cease to accrue on the unfunded portion unused amount of the Revolving Credit Commitment of such Defaulting Bank pursuant to Section 2.5(a2.07(a);
(b) the Revolving Credit Commitment and Outstanding Revolving Credit Exposure of such Defaulting Bank shall not be included in determining whether the Majority Required Banks or any other requisite Banks have taken or may take any action hereunder (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 10.110.01); provided, that, except as otherwise provided in Section 10.1, this clause (b) shall not apply to the vote of a Defaulting Bank in the case of an that any amendment, waiver or other modification requiring the consent of all Banks or all Banks affected thereby shall, except as otherwise provided in Section 10.01, require the consent of such Defaulting Bank or each Bank directly affected therebyin accordance with the terms hereof;
(c) if any LC Obligations exist Exposure exists at the time a such Bank becomes a Defaulting Bank then:
(i) so long as no Default or Event of Default shall be continuing immediately before or after giving effect to such reallocation, all or any part the LC Exposure of such Defaulting Bank (other than any portion thereof attributable to unreimbursed LC Obligation Disbursements with respect to which such Defaulting Bank shall have funded its participation as contemplated by Sections 2.03(d) and 2.03(e)) shall be reallocated among the nonNon-Defaulting Banks in accordance with their respective Pro Rata Share Proportional Shares but only to the extent that (x) the sum of all nonNon-Defaulting Banks’ Outstanding Revolving Credit Exposures plus such Defaulting Bank’s LC Exposure (excluding the portion thereof referred to above) does not exceed the total sum of all nonNon-Defaulting Banks’ Revolving Credit Commitments, (y) no Bank’s Outstanding Credit Exposure shall exceed its Commitment and (z) the conditions set forth in Section 11.2 are satisfied at such time;
(ii) if the reallocation described in subclause clause (i) above cannot, or can only partially, be effected, the Company shall within one (1) Business Day following notice by the Administrative Agent, cash collateralize for the benefit of the relevant LC Issuer Issuing Banks the portion of such Defaulting Bank’s Pro Rata Share of LC Exposure (other than any portion thereof referred to in the LC Obligations (after giving effect to any partial reallocation pursuant to subclause parenthetical in such clause (i)) above) that has not been reallocated, in accordance with the procedures set forth in Section 9.2 2.03(j), for so long as such LC Obligation Exposure is outstanding;
(iii) if the Company cash collateralizes any portion of such Defaulting Bank’s Pro Rata Share of the LC Obligations Exposure pursuant this to clause (c)ii) above, the Company shall not be required to pay any participation fees to such Defaulting Bank pursuant to Section 3.4 2.07(b) with respect to such Defaulting Bank’s Pro Rata Share portion of the LC Obligations during the period such Defaulting Bank’s Pro Rata Share of the LC Obligations Exposure for so long as such Defaulting Bank’s LC Exposure is cash collateralized;
(iv) if the non-Defaulting Banks’ Pro Rata Share any portion of the LC Obligations Exposure of such Defaulting Bank is reallocated pursuant to this clause (c)i) above, then the participation fees payable to the Banks pursuant to Section 2.5(a2.07(b) and Section 3.4 shall be adjusted in accordance with to give effect to such non-Defaulting Banks’ Pro Rata Sharesreallocation; orand
(v) if all or any portion of such Defaulting Bank’s Pro Rata Share of LC Exposure (other than any portion thereof referred to in the LC Obligations parenthetical in clause (i) above) is neither reallocated nor cash collateralized pursuant to this clause (c)i) or (ii) above, then, without prejudice to any rights or remedies of any LC Issuer Issuing Bank or any other Bank hereunder, all participation fees that otherwise would have been payable to such Defaulting Bank (solely with respect to the portion of such Defaulting Bank’s Commitment that was utilized by such LC Obligations) and LC Fees payable under Section 3.4 2.07(b) with respect to such Defaulting Bank’s Pro Rata Share of the LC Obligations Exposure shall be payable to the applicable LC Issuer until Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Bank’s Pro Rata Share LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Obligation Exposure is reallocated and/or cash collateralized and/or reallocatedcollateralized; and
(dvi) so long as any such Bank is a Defaulting Bank, no LC Issuer Issuing Bank shall be required to issue issue, amend, renew or Modify extend any Facility LC, Letter of Credit unless it is satisfied that the related exposure and the Defaulting Bank’s then outstanding LC Exposure will be 100% fully covered by the Revolving Credit Commitments of the nonNon-Defaulting Banks and/or cash collateral will be provided by the Company in accordance with clause (c) aboveSection 2.03(j), and participating interests in any such newly issued issued, amended, renewed or Modified Facility LC shall extended Letter of Credit will be allocated among nonthe Non-Defaulting Banks in a manner consistent with clause(c)(iSection 2.14(c)(i) above (and such Defaulting Banks Bank shall not participate therein).
(e) If (i) a Bankruptcy Event with respect to a Parent of any Bank shall occur following the date hereof and for so long as such event shall continue or (ii) any LC Issuer has a good faith belief that any Bank has defaulted in fulfilling its obligations under one or more other agreements in which such Bank commits to extend credit, such LC Issuer shall not be required to issue, amend or increase any Facility LC, unless such LC Issuer, as the case may be, shall have entered into arrangements with the Company or such Bank, satisfactory to such LC Issuer, as the case may be, to defease any risk to it in respect of such Bank hereunder.
(f) . In the event that the Administrative Agent, the Company, Company and each LC Issuer Issuing Bank each agrees agree that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the Banks’ Pro Rata Shares LC Exposures of the LC Obligations Banks shall be readjusted to reflect the inclusion of such Bank’s Revolving Credit Commitment and on such date such Bank shall purchase at par such of the Loans of the other Banks as the Administrative Agent shall determine may be necessary in order for such Bank to hold such Loans in accordance with its Pro Rata Share Proportional Share. Subject to Section 10.19, no reallocation hereunder shall constitute a waiver or release of the Aggregate Commitment; providedany claim of any party hereunder against a Defaulting Bank arising from that Bank having become a Defaulting Bank, that if the Company cash collateralized including any portion claim of a Non-Defaulting Bank as a result of such Non-Defaulting Bank’s Pro Rata Share of the LC Obligations pursuant to Section 4.7(c), increased exposure following such cash shall be returned to the Companyreallocation.
Appears in 1 contract
Defaulting Banks. Notwithstanding any provision of this Agreement to the contrary, if (a) If any Bank becomes with a Revolving Credit Commitment becomes, and during the period it remains, a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Commitment Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Bank pursuant to Section 2.5(a);
(b) the Commitment and Outstanding Credit Exposure of such Defaulting Bank shall not be included in determining whether the Majority Banks have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.1); providedapply, that, except as otherwise provided in Section 10.1, this clause (b) shall not apply notwithstanding anything to the vote of a Defaulting Bank contrary in the case of an amendment, waiver or other modification requiring the consent of such Bank or each Bank directly affected thereby;
(c) if any LC Obligations exist at the time a Bank becomes a Defaulting Bank thenthis Agreement:
(i) so long as no Default or Event of Default shall be continuing immediately before or after giving effect to such reallocation, all or any part of such LC Obligation shall Defaulting Bank’s participation in Letter of Credit Outstandings and Swing Loans will, subject to the limitation in the proviso below, automatically be reallocated (effective no later than one (1) Business Day after the Administrative Agent has actual knowledge that such Bank has become a Defaulting Bank) among the nonNon-Defaulting Banks pro rata in accordance with their respective Pro Rata Share but only Revolver Percentages (calculated as if the Defaulting Bank’s Revolving Credit Commitment was reduced to zero and each Non-Defaulting Bank’s Revolving Credit Commitment had been increased proportionately); provided that the sum of each Non-Defaulting Bank’s total Revolving Credit Exposure may not in any event exceed the Revolving Credit Commitment of such Non-Defaulting Bank as in effect at the time of such reallocation; and
(ii) to the extent that any portion (xthe “unreallocated portion”) of such Defaulting Bank’s participation in Letter of Credit Outstandings and Swing Loans cannot be reallocated pursuant to clause (i) above for any reason, the sum Borrower will, not later than two (2) Business Days after demand by the Administrative Agent (at the direction of all non-Defaulting Banks’ Outstanding any Letter of Credit Exposure does not exceed Issuer and/or the total of all non-Defaulting Banks’ CommitmentsSwing Lender), (y) no Cash Collateralize the obligations of the Borrower to such Letter of Credit Issuer or the Swing Lender in respect of such exposure, as the case may be, in an amount at least equal to the aggregate amount of the unreallocated portion of such Defaulting Bank’s Outstanding participation in Letter of Credit Exposure shall exceed its Commitment Outstandings and Swing Loans or (z) make other arrangements satisfactory to the Administrative Agent, the Letter of Credit Issuer and the Swing Lender in their sole discretion to protect them against the risk of non-payment by such Defaulting Bank; 120175877_7 145870580_7 provided that, subject to Section 10.17, neither any such reallocation nor any payment by a Non-Defaulting Bank pursuant thereto nor any such Cash Collateralization or reduction will constitute a waiver or release of any claim the Borrower, the Administrative Agent, a Letter of Credit Issuer, the Swing Lender or any other Bank may have against such Defaulting Bank or cause such Defaulting Bank to be a Non-Defaulting Bank.
(b) Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of a Defaulting Bank (whether voluntary or mandatory, at maturity, pursuant to Article 6 or otherwise) or received by the Administrative Agent from a Defaulting Bank pursuant to Section 10.4 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 Bank to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Bank to the Letter of Credit Issuer or the Swing Lender hereunder; third, to Cash Collateralize the unreallocated portion of such Defaulting Bank’s participation in Letter of Credit Outstandings and Swing Loans in accordance with Section 2.17(a)(ii); fourth, if such Defaulting Bank is a CAD Non-Funding Bank, to the payment of any amounts owing by such Defaulting Bank to the CAD Fronting Bank as provided in Section 2.1(h)(ii); fifth, as the Borrower may request (so long as no Default or Event of Default exists), to the funding of any Loan or funded participation in respect of which such Defaulting Bank has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; sixth, if so determined by the Administrative Agent and the Borrower, to be held in a deposit account and released pro rata in order to (A) satisfy such Defaulting Bank’s potential future funding obligations with respect to Loans and funded participations under this Agreement and (B) Cash Collateralize future unreallocated portions of such Defaulting Bank’s participation in Letter of Credit Outstandings and Swing Loans with respect to future Letters of Credit and Swing Loans issued under this Agreement in accordance with Section 2.17(a)(ii); seventh, to the payment of any amounts owing to the Banks, the Letter of Credit Issuer or the Swing Lender as a result of any judgment of a court of competent jurisdiction obtained by any Bank, such Letter of Credit Issuer or the Swing Lender against such Defaulting Bank as a result of such Defaulting Bank’s breach of its obligations under this Agreement; eighth, 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 Bank as a result of such Defaulting Bank’s breach of its obligations under this Agreement; and ninth, to such Defaulting Bank or as otherwise directed by a court of competent jurisdiction; provided that if (1) such payment is a payment of the principal amount of any Loans or funded participations in Letters of Credit or Swing Loans in respect of which such Defaulting Bank has not fully funded its appropriate share, and (2) such Loans were made or the related Letters of Credit or Swing Loans were issued at a time when the conditions set forth in Section 11.2 are 3.2 were satisfied at or waived, such time;
(ii) if payment shall be applied solely to pay the reallocation described Loans of, and funded participations in subclause (i) above cannotLetters of Credit or Swing Loans owed to, all Non-Defaulting Banks on a pro rata basis prior to being applied to the payment of any Loans of, or can only partiallyfunded participations in Letters of Credit or Swing Loans owed to, be effected, the Company shall within one (1) Business Day following notice such Defaulting Bank until such time as all Loans and funded and unfunded participations in Letter of Credit Outstandings and Swing Loans are held by the Agent, cash collateralize for the benefit of the relevant LC Issuer such Defaulting Bank’s Pro Rata Share of the LC Obligations (after giving effect to any partial reallocation pursuant to subclause (i) above) Banks pro rata in accordance with the procedures set forth in Revolving Credit Commitments under the applicable Revolving Credit without giving effect to Section 9.2 for so long as such LC Obligation is outstanding;
2.17(a)(i). Any payments, prepayments or other amounts paid or payable to a Defaulting Bank that are applied (iiior held) if the Company cash collateralizes any portion of to pay amounts owed by a Defaulting Bank or to post Cash Collateral pursuant to this Section 2.17(b) shall be deemed paid to and redirected by such Defaulting Bank’s Pro Rata Share , and each Bank irrevocably consents hereto.
(c) If the Borrower, the Administrative Agent, the Letter of Credit Issuers and the Swing Lender agree in writing in their discretion that any Defaulting Bank has ceased to be a Defaulting Bank, the Administrative Agent will so notify the parties hereto, whereupon as of the LC Obligations pursuant this clause (ceffective date specified in such notice, and subject to any conditions set forth therein, that Bank will, to the extent applicable, 120175877_7 145870580_7 purchase at par that portion of outstanding Loans of the other Banks or take such other actions as the Administrative Agent may determine to be necessary to cause the Loans and funded and unfunded participations in Letters of Credit and Swing Loans to be held pro rata by the Banks in accordance with their Percentage under the applicable Credit without giving effect to Section 2.17(a), the Company shall not whereupon such Bank will cease to be required to pay any fees to such a Defaulting Bank pursuant to Section 3.4 Bank; provided that no adjustments will be made retroactively with respect to such fees accrued or payments made by or on behalf of the Borrower while that Bank was a Defaulting Bank; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Bank to Non-Defaulting Bank will constitute a waiver or release of any claim of any party hereunder arising from that Bank’s Pro Rata Share of the LC Obligations during the period such having been a Defaulting Bank’s Pro Rata Share of the LC Obligations is cash collateralized;
(iv) if the non-Defaulting Banks’ Pro Rata Share of the LC Obligations is reallocated pursuant to this clause (c), then the fees payable to the Banks pursuant to Section 2.5(a) and Section 3.4 shall be adjusted in accordance with such non-Defaulting Banks’ Pro Rata Shares; or
(v) if any Defaulting Bank’s Pro Rata Share of the LC Obligations is neither reallocated nor cash collateralized pursuant to this clause (c), then, without prejudice to any rights or remedies of any LC Issuer or any Bank hereunder, all fees that otherwise would have been payable to such Defaulting Bank (solely with respect to the portion of such Defaulting Bank’s Commitment that was utilized by such LC Obligations) and LC Fees payable under Section 3.4 with respect to such Defaulting Bank’s Pro Rata Share of the LC Obligations shall be payable to the applicable LC Issuer until such Defaulting Bank’s Pro Rata Share of the LC Obligation is cash collateralized and/or reallocated; and.
(d) so So long as any Bank is a Defaulting Bank, no LC Letter of Credit Issuer shall will be required to issue issue, amend, extend, renew or Modify increase any Facility LC, Letter of Credit unless it is reasonably satisfied that the related exposure will be 100% covered by Borrower has complied with the Commitments requirements of the non-Defaulting Banks and/or cash collateral will be provided by the Company in accordance with clause (c) above, and participating interests in any such newly issued or Modified Facility LC shall be allocated among non-Defaulting Banks in a manner consistent with clause(c)(i) above (and Defaulting Banks shall not participate thereinSection 2A.1(a)(iii).
(e) If No Defaulting Bank shall be entitled to receive any commitment fee pursuant to Section 2.7(a) or Letter of Credit Fee for any period during which that Bank is a Defaulting Bank. With respect to any commitment fee pursuant to Section 2.7(a) or Letter of Credit Fee not required to be paid to any Defaulting Bank pursuant to this clause (ie), the Borrower shall (x) a Bankruptcy Event pay to each Non-Defaulting Bank that portion of any such fee otherwise payable to such Defaulting Bank with respect to a Parent such Defaulting Bank’s participation in Letters of Credit or Swing Loans that has been reallocated to such Non-Defaulting Bank pursuant to Section 2.17(a)(i), (y) pay to each Letter of Credit Issuer and Swing Lender, as applicable, the amount of any such fee otherwise payable to such Defaulting Bank shall occur following to the date hereof extent allocable to such Letter of Credit Issuer or Swing Lender’s Fronting Exposure to such Defaulting Bank, and for so long as such event shall continue or (iiz) any LC Issuer has a good faith belief that any Bank has defaulted in fulfilling its obligations under one or more other agreements in which such Bank commits to extend credit, such LC Issuer shall not be required to issue, amend or increase pay the remaining amount of any Facility LC, unless such LC Issuer, as the case may be, shall have entered into arrangements with the Company or such Bank, satisfactory to such LC Issuer, as the case may be, to defease any risk to it in respect of such Bank hereunderfee.
(f) In the event that the Agent, the Company, and each LC Issuer each agrees that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the Banks’ Pro Rata Shares of the LC Obligations shall be readjusted to reflect the inclusion of such Bank’s Commitment and on such date such Bank shall purchase at par such of the Loans of the other Banks as the Agent shall determine may be necessary in order for such Bank to hold such Loans in accordance with its Pro Rata Share of the Aggregate Commitment; provided, that if the Company cash collateralized any portion of such Defaulting Bank’s Pro Rata Share of the LC Obligations pursuant to Section 4.7(c), such cash shall be returned to the Company.
Appears in 1 contract
Defaulting Banks. Notwithstanding any provision of this Agreement to the contrary, if any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Commitment Fees 2.21.1. The Unused Portion Fee shall cease to accrue on the unfunded portion of the Revolving Credit Commitment of such Defaulting Bank pursuant to Section 2.5(a);2.9.
(b) the 2.21.2. The Revolving Credit Commitment and Outstanding Credit Exposure of such Defaulting Bank shall not be included in determining whether all Banks or the Majority Banks have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.111.1); provided, thatprovided that any waiver, except as otherwise provided in Section 10.1, this clause (b) shall not apply to the vote of a Defaulting Bank in the case of an amendment, waiver amendment or other modification requiring the consent of such Bank all Banks or each affected Bank directly which affects such Defaulting Bank differently than any other affected thereby;Bank shall require the consent of such Defaulting Bank.
(c) if 2.21.3. If any LC Swing Line Loans or L/C Obligations exist or are outstanding at the time a Bank becomes a Defaulting Bank Bank, then:
(ia) so long as no Default or Event of Default shall be continuing immediately before or after giving effect to such reallocation, all or any part of such LC Obligation Defaulting Bank’s share of participations in such Swing Line Loans and L/C Obligations shall be reallocated among the non-Defaulting Banks in accordance with their respective Pro Rata Share Shares, but only to the extent that (x) the sum of all non-Defaulting Banks’ Outstanding Bank’s Revolving Credit Exposure Exposures plus such Defaulting Bank’s share of participations in such Swing Line Loans and L/C Obligations does not exceed the total of all non-Defaulting Banks’ Commitments, Commitments and (y) no Bank’s Outstanding Credit Exposure shall exceed its Commitment and (z) the conditions set forth in Section 11.2 3.2 are satisfied at such time;
(iib) if the reallocation described in subclause clause (ia) above cannot, not be effected or can only partially, partially be effected, the Company Borrower shall within one (1) Business Day following notice by the AgentAdministrative Agent (x) first, prepay such Swing Line Loans and (y) second, cash collateralize for the benefit of the relevant LC Issuer such Defaulting Bank’s Pro Rata Share share of the LC outstanding L/C Obligations (after giving effect to any partial reallocation pursuant to subclause clause (ia) above) in accordance with the procedures set forth in Section 9.2 for so long as such LC Obligation is L/C Obligations are outstanding;
(iiic) if the Company Borrower cash collateralizes any portion of such Defaulting Bank’s Pro Rata Share share of the LC outstanding L/C Obligations pursuant to this clause (c)Section 2.21.3, the Company Borrower shall not be required to pay any fees with respect to such Defaulting Bank pursuant to Section 3.4 with respect to such Defaulting Bank’s Pro Rata Share of the LC Obligations 2.2.4 during the period such Defaulting Bank’s Pro Rata Share share of the LC outstanding L/C Obligations is cash collateralized;
(ivd) if the share of the outstanding L/C Obligations of the non-Defaulting Banks’ Pro Rata Share of the LC Obligations Bank is reallocated pursuant to this clause (c)Section 2.21.3, then the fees payable to the Banks pursuant to Section 2.5(a) 2.2.4 and Section 3.4 2.9 shall be adjusted in accordance with such non-Defaulting Banks’ Pro Rata Shares; orand
(ve) if any Defaulting Bank’s Pro Rata Share share of the LC outstanding L/C Obligations is neither reallocated nor cash collateralized nor reallocated pursuant to this clause (c)Section 2.21.3, then, without prejudice to any rights or remedies of any LC Issuer or the L/C Issuer, any Bank or the Borrower hereunder, all fees Unused Portion Fee that otherwise would have been payable to such Defaulting Bank (solely with respect to the portion of such Defaulting Bank’s Revolving Commitment that was utilized by such LC outstanding L/C Obligations) and LC Fees letter of credit fees payable under Section 3.4 2.2.4 with respect to such Defaulting Bank’s Pro Rata Share of the LC Obligations Bank shall be payable to the applicable LC Issuer Issuing Bank until such Defaulting Bank’s Pro Rata Share of the LC Obligation share is cash collateralized and/or reallocated; and.
(d) so 2.21.4. So long as any Bank is a Defaulting Bank, no LC Issuer the Swing Line Lender shall not be required to issue fund any Swing Line Loan and the L/C Issuer shall not be required to issue, amend or Modify increase any Facility LCLetter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Banks and/or cash collateral will be provided by the Company Borrower in accordance with clause (c) aboveSection 2.21.3), and participating interests in any such newly issued or Modified Facility LC increased Letter of Credit or newly made Swing Line Loan shall be allocated among non-Defaulting Banks in a manner consistent with clause(c)(i) above Section 2.21.3 (and the Defaulting Banks Bank shall not participate therein).
(e) 2.21.5. If any Defaulting Bank shall fail to make any payment required to be made by it pursuant to this Agreement, then the Administrative Agent may, in its discretion and notwithstanding any contrary provision hereof, (i) a Bankruptcy Event with respect apply any amounts thereafter received by the Administrative Agent for the account of such Defaulting Bank to a Parent of any Bank shall occur following the date hereof and for so long as satisfy such event shall continue or Defaulting Bank’s funding obligations hereunder until all such unsatisfied obligations are fully paid, and/or (ii) hold any LC Issuer has such amounts in a good faith belief that segregated account as cash collateral for, and application to, any Bank has defaulted in fulfilling its future funding obligations under one or more other agreements in which such Bank commits to extend credit, such LC Issuer shall not be required to issue, amend or increase any Facility LC, unless such LC Issuer, as the case may be, shall have entered into arrangements with the Company or such Bank, satisfactory to such LC Issuer, as the case may be, to defease any risk to it in respect of such Bank hereunder.
(f) Defaulting Bank. In the event that the Administrative Agent, the CompanyBorrower, the L/C Bank and each LC Issuer the Swing Line Lender each agrees that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the Banks’ Pro Rata Shares participations of the LC Banks in all outstanding Swing Line Loans and L/C Obligations shall be readjusted to reflect the inclusion of such Bank’s Revolving Credit Commitment and on such date such Bank shall purchase at par such of the Revolving Credit Loans of the other Banks (other than Swing Line Loans) as the Administrative Agent shall determine may be necessary in order for such Bank to hold such Revolving Credit Loans in accordance with its Pro Rata Share of the Aggregate Commitment; provided, that if the Company cash collateralized any portion of such Defaulting Bank’s Pro Rata Share of the LC Obligations pursuant to Section 4.7(c), such cash shall be returned to the CompanyShare.
Appears in 1 contract
Sources: Credit Agreement (Saia Inc)
Defaulting Banks. (a) Notwithstanding any provision of this Agreement to the contrary, if any Bank becomes a one or more Revolving Banks become Defaulting BankBanks, then the following provisions shall apply for so long as any such Bank is a Defaulting Bank:
(ai) Commitment Fees no commitment fee shall cease to accrue on the unfunded portion unused amount of the any Revolving Commitment of such any Defaulting Bank pursuant to Section 2.5(a2.8(a);
(bii) the Commitment Revolving Commitments and Outstanding Credit Exposure Revolving Exposures of such each Defaulting Bank shall not be included disregarded in determining whether the Majority Required Revolving Banks, Required Banks or any other requisite Banks shall have taken or may take any action hereunder or under any other Loan Document (including any consent to any waiver, amendment or waiver other modification pursuant to Section 10.19.5); provided that any waiver, amendment, or other modification that, disregarding the effect of this clause (ii), requires the consent of each Bank directly affected thereby pursuant to clause (1)(a), (1)(b), (1)(c) or (1)(d) of Section 9.5 shall continue to require the consent of each Defaulting Bank directly affected thereby in accordance with the terms hereof; provided, thatfurther, except as otherwise provided in that any waiver, amendment or other modification of this Section 10.1, this 2.20(a)(ii) or clause (b1)(a), (1)(b), (1)(c) shall not apply to the vote or (1)(d) of Section 9.5 at any time that a Bank is a Defaulting Bank in the case of an amendment, waiver or other modification requiring shall require the consent of such Defaulting Bank or each if such Defaulting Bank would be directly adversely affected thereby;
(c1) if any Dollar LC Obligations exist Exposure, Multi-Currency LC Exposure or Swingline Exposure exists at the time a Revolving Bank becomes a Defaulting Bank (each Swingline Loan to which such Swingline Exposure is attributable being referred to as a “Reallocated Swingline Loan” and each Letter of Credit to which such LC Exposure is attributable being referred to as a “Reallocated Letter of Credit”), then:
(iA) so long as no Default subject to clause (B) below, the participation of each Non-Defaulting Bank of such Class in each Reallocated Swingline Loan (if applicable) or Event Reallocated Letter of Default Credit of such Class shall be continuing immediately before adjusted to be determined under Section 2.18(d) or after giving effect to such reallocation, all or any part 2.23 on the basis of such LC Obligation Revolving Bank’s Adjusted Applicable Percentage (and all references in Section 2.18 or 2.23 to “Applicable Percentage” shall be reallocated among the non-Defaulting Banks in accordance with their respective Pro Rata Share but only deemed to the extent that (x) the sum of all non-Defaulting Banks’ Outstanding Credit Exposure does not exceed the total of all non-Defaulting Banks’ Commitments, (y) no Bank’s Outstanding Credit Exposure shall exceed its Commitment and (z) the conditions set forth in Section 11.2 are satisfied at such timebe references to “Adjusted Applicable Percentage”);
(iiB) if notwithstanding the reallocation described in subclause (i) above cannot, or can only partially, be effected, the Company shall within one foregoing:
(1) Business Day following notice by if any Revolving Bank that becomes a Defaulting Bank shall be the AgentSwingline Bank or an Issuing Bank or an Affiliate thereof, cash collateralize for the benefit of the relevant LC Issuer such Defaulting Bank’s Pro Rata Share of the LC Obligations (after giving effect to any partial reallocation no adjustment shall be made pursuant to subclause (i) above) in accordance with the procedures set forth in Section 9.2 for so long as such LC Obligation is outstanding;
(iii) if the Company cash collateralizes any portion of such Defaulting Bank’s Pro Rata Share of the LC Obligations pursuant this clause (c), the Company shall not be required to pay any fees to such Defaulting Bank pursuant to Section 3.4 A) above with respect to such Defaulting Bank’s Pro Rata Share of participations in any Swingline Loan made by the LC Obligations during the period such Defaulting Bank’s Pro Rata Share of the LC Obligations is cash collateralized;
(iv) if the non-Defaulting Banks’ Pro Rata Share of the LC Obligations is reallocated pursuant to this clause (c), then the fees payable to the Banks pursuant to Section 2.5(a) and Section 3.4 shall be adjusted in accordance with such non-Defaulting Banks’ Pro Rata Shares; or
(v) if any Defaulting Bank’s Pro Rata Share of the LC Obligations is neither reallocated nor cash collateralized pursuant to this clause (c), then, without prejudice to any rights or remedies of any LC Issuer Swingline Bank or any Bank hereunder, all fees that otherwise would have been payable to such Defaulting Bank (solely with respect to the portion Letter of such Defaulting Bank’s Commitment that was utilized Credit issued by such LC Obligations) and LC Fees payable under Section 3.4 with respect to such Defaulting Issuing Bank’s Pro Rata Share of the LC Obligations shall be payable to the applicable LC Issuer until such Defaulting Bank’s Pro Rata Share of the LC Obligation is cash collateralized and/or reallocated; and
(d) so long as any Bank is a Defaulting Bank, no LC Issuer shall be required to issue or Modify any Facility LC, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Banks and/or cash collateral will be provided by the Company in accordance with clause (c) above, and participating interests in any such newly issued or Modified Facility LC shall be allocated among non-Defaulting Banks in a manner consistent with clause(c)(i) above (and Defaulting Banks shall not participate therein).
(e) If (i) a Bankruptcy Event with respect to a Parent of any Bank shall occur following the date hereof and for so long as such event shall continue or (ii) any LC Issuer has a good faith belief that any Bank has defaulted in fulfilling its obligations under one or more other agreements in which such Bank commits to extend credit, such LC Issuer shall not be required to issue, amend or increase any Facility LC, unless such LC Issuer, as the case may be, shall have entered into arrangements with ;
(2) if all the Company or Defaulting Banks’ Applicable Percentage of the LC Exposure of any Class attributable to the Reallocated Letters of Credit of such Bank, satisfactory Class (the “Defaulting Bank LC Exposure”) and the Swingline Exposure attributable to the Reallocated Swingline Loans (the “Defaulting Bank Swingline Exposure”) collectively exceed the unused portion of the Revolving Commitments of the Non-Defaulting Banks of such LC Issuer, Class as of the time the adjustments are to be made pursuant to clause (A) above (any such unused portion being referred to as the case may be, to defease any risk to it in respect of such Bank hereunder.
(f) In the event that the Agent, the Company, and each LC Issuer each agrees that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank“Maximum Incremental Participation Amount”), then the Banks’ Pro Rata Shares incremental amount of participations in Letters of Credit of such Class and Swingline Loans acquired by the LC Obligations Non-Defaulting Banks under clause (A) above (the “Incremental Participations”) shall not exceed at any time the Maximum Incremental Participation Amount with respect to such Class;
(3) adjustments under Section 2.20(a)(iii)(A) and (B) above shall only be made to the extent that, after giving effect to such adjustments, the Revolving Exposure of any Non-Defaulting Bank with respect to any Class shall not exceed its Revolving Commitment with respect to such Class; and
(4) no adjustment shall be readjusted to reflect made under Section 2.20(a)(iii)(A) or (B) above if, at the inclusion time such adjustment is made, an Event of such Bank’s Commitment Default has occurred and on such date such Bank shall purchase at par such of the Loans of the other Banks as the Agent shall determine may be necessary in order for such Bank to hold such Loans in accordance with its Pro Rata Share of the Aggregate Commitment; provided, that if the Company cash collateralized any portion of such Defaulting Bank’s Pro Rata Share of the LC Obligations pursuant to Section 4.7(c), such cash shall be returned to the Company.is continuing;
Appears in 1 contract
Sources: Credit Agreement (Allegion PLC)
Defaulting Banks. Notwithstanding any provision of this Agreement to the contrary, if any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Commitment Fees fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Bank pursuant to Section 2.5(a)3.1;
(b) the Commitment and Outstanding Credit Exposure of such Defaulting Bank shall not be included in determining whether all Banks or the Majority Banks have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.1); provided9.4, thatprovided that any waiver, except as otherwise provided in Section 10.1, this clause (b) shall not apply to the vote of a Defaulting Bank in the case of an amendment, waiver amendment or other modification requiring the consent of such Bank all Banks or each affected Bank directly which affects such Defaulting Bank differently than other affected therebyBank shall require the consent of such Defaulting Bank);
(c) if any LC Letter of Credit Obligations shall exist at the time a Bank becomes a Defaulting Bank then:
(i1) so long as no Default or Event of Default shall be continuing immediately before or after giving effect to such reallocation, all or any part of such LC Obligation the unfunded participations in and commitments with respect to Letters of Credit shall be reallocated among the non-Defaulting Banks in accordance with their respective Pro Pro-Rata Share Shares but only to the extent that (xy) the sum of all non-Defaulting Banks’ Outstanding Credit Exposure plus such Defaulting Bank’s Loans and participations in and commitments with respect to Loans and Letters of Credit does not exceed the total of all non-Defaulting Banks’ Commitments, (y) no Bank’s Outstanding Credit Exposure shall exceed its Commitment Commitments and (z) the conditions set forth in Section 11.2 4 are satisfied at such time;; provided, that the Letter of Credit Fees payable to the Banks shall be determined taking into account such reallocation.
(ii2) if the reallocation described in subclause clause (i1) above cannot, or can only partially, be effected, the Company Borrower shall within one (1) three Business Day Days following notice by the Administrative Agent, cash collateralize for the benefit of the relevant LC Issuer such Defaulting Bank’s Pro Pro- Rata Share of the LC Letter of Credit Obligations (after giving effect to any partial reallocation pursuant to subclause (i) above) in accordance with the procedures set forth in Section 9.2 below for so long as such LC Obligation Exposure is outstanding;
(iii3) if the Company Borrower cash collateralizes any portion of such Defaulting Bank’s Pro Rata Share of the LC Obligations Exposure pursuant this to clause (c)2) above, the Company Borrower shall not be required to pay any fees to such Defaulting Bank pursuant to Section 3.4 2.3(b) with respect to such Defaulting Bank’s Pro Rata Share of the LC Obligations Exposure during the period such Defaulting Bank’s Pro Rata Share of the LC Obligations Exposure is cash collateralized;; and
(iv) if the non-Defaulting Banks’ Pro Rata Share of the LC Obligations is reallocated pursuant to this clause (c), then the fees payable to the Banks pursuant to Section 2.5(a) and Section 3.4 shall be adjusted in accordance with such non-Defaulting Banks’ Pro Rata Shares; or
(v4) if any Defaulting Bank’s Pro Rata Share of the LC Obligations Exposure is neither reallocated nor not cash collateralized pursuant to this clause (c)2) above, then, without prejudice to any rights or remedies of any LC Issuer the Issuing Bank(s) or any Bank hereunder, all fees that otherwise would have been payable to such Defaulting Bank (solely with respect to the portion Letter of such Defaulting Bank’s Commitment that was utilized by such LC Obligations) and LC Credit Fees payable under Section 3.4 2.2(b) with respect to such Defaulting Bank’s Pro Rata Share of the LC Obligations Exposure shall be payable to the applicable LC Issuer Issuing Bank(s) until such Defaulting Bank’s Pro Rata Share of the LC Obligation Exposure is cash collateralized and/or reallocated; andcollateralized;
(d) so long as any Bank is a Defaulting Bank, no LC Issuer the Issuing Bank(s) shall not be required to issue or Modify modify any Facility LCLetter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Banks and/or cash collateral will be provided by the Company Borrower in accordance with clause (c) above, and participating interests in any such newly issued or Modified Facility LC shall be allocated among non-Defaulting Banks in a manner consistent with clause(c)(i) above (and Defaulting Banks shall not participate thereinSection 3.8(c).; and
(e) If any amount payable to such Defaulting Bank hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Bank pursuant to Section 2.18(b)) shall, in lieu of being distributed to such Defaulting Bank, 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 Bank shall occur following to the date hereof and for so long as such event shall continue or Administrative Agent hereunder, (ii) second, to the payment of any LC Issuer amounts owing by such Defaulting Bank to the Issuing Bank(s), (iii) third, to the funding of any Revolving Credit Loan or the funding or cash collateralization of any participating interest in any Letter of Credit in respect of which such Defaulting Bank has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (iv) fourth, if so determined by the Administrative Agent and the Borrower, held in such account as cash collateral for future funding obligations of the Defaulting Bank under this Agreement, (v) fifth, to the payment of any amounts owing to the Borrower or the Banks as a good faith belief that result of any judgment of a court of competent jurisdiction obtained by the Borrower or any Bank has defaulted in fulfilling against such Defaulting Bank as a result of such Defaulting Bank’s breach of its obligations under one this Agreement, (vi) sixth, if so determined by the Administrative Agent, distributed to the Banks other than the Defaulting Bank until the ratio of the Outstanding Credit Exposure of such Banks to the Aggregate Outstanding Credit Exposure equals such ratio immediately prior to the Defaulting Bank’s failure to fund any portion of any Loans or more other agreements participations in which such Bank commits to extend creditLetters of Credit and (vii) seventh, such LC Issuer shall not be required to issue, amend or increase any Facility LC, unless such LC Issuer, as the case may be, shall have entered into arrangements with the Company or such Bank, satisfactory to such LC Issuer, as the case may be, to defease any risk to it in respect of such Bank hereunder.
(f) In the event that the Agent, the Company, and each LC Issuer each agrees that a Defaulting Bank has adequately remedied all matters that caused such Bank to be or as otherwise directed by a Defaulting Bank, then the Banks’ Pro Rata Shares court of the LC Obligations shall be readjusted to reflect the inclusion of such Bank’s Commitment and on such date such Bank shall purchase at par such of the Loans of the other Banks as the Agent shall determine may be necessary in order for such Bank to hold such Loans in accordance with its Pro Rata Share of the Aggregate Commitmentcompetent jurisdiction; provided, that if such payment is a prepayment of the Company cash collateralized principal amount of any portion Loans or Reimbursement Obligations in respect of draws under Letters of Credit with respect to which the applicable Issuing Bank has funded its participation obligations, such payment shall be applied solely to prepay the Loans of, and Reimbursement Obligations owed to, all Banks that are not Defaulting Banks pro rata prior to being applied to the prepayment of any Loans, or Reimbursement Obligations owed to, any Defaulting Bank’s Pro Rata Share of the LC Obligations pursuant to Section 4.7(c), such cash shall be returned to the Company.
Appears in 1 contract
Sources: Credit Agreement (Cerner Corp /Mo/)
Defaulting Banks. (a) Notwithstanding any provision of this Agreement or any other Loan Document to the contrary, if any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(ai) Commitment Ticking Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Bank pursuant to Section 2.5(a3.2(b);; and
(bii) the Commitment and Outstanding Extensions of Credit Exposure of such Defaulting Bank shall not be included in determining whether all Banks (or each Bank) or the Majority Banks have taken or may take any action hereunder (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 10.1); provided, that, except as otherwise provided in Section 10.1, that this clause (b) shall not apply to the vote of a Defaulting Bank in the case of an amendment, waiver or other modification requiring the consent of such Bank or each Bank directly affected thereby;
(c) thereby if such Bank is an affected Bank; provided, further, that there shall not be any LC Obligations exist at the time a Bank becomes a Defaulting Bank then:
amendment, modification or waiver (i) so long as no Default or Event of Default shall be continuing immediately before or after giving effect to such reallocation, all or any part of such LC Obligation shall be reallocated among the non-Defaulting Banks in accordance with their respective Pro Rata Share but only to the extent that (x) the sum of all non-Defaulting Banks’ Outstanding Credit Exposure does not exceed the total of all non-Defaulting Banks’ Commitments, (y) no Bank’s Outstanding Credit Exposure shall exceed its Commitment and (z) the conditions set forth in Section 11.2 are satisfied at such time;
(ii) if the reallocation described in subclause (i) above cannot, or can only partially, be effected, the Company shall within one (1) Business Day following notice by the Agent, cash collateralize for the benefit of the relevant LC Issuer such Defaulting Bank’s Pro Rata Share of the LC Obligations (after giving effect to any partial reallocation pursuant to subclause (i) above) in accordance with the procedures set forth in Section 9.2 for so long as such LC Obligation is outstanding;
(iii) if the Company cash collateralizes any portion of such Defaulting Bank’s Pro Rata Share of the LC Obligations pursuant this clause (c), the Company shall not be required to pay any fees to such Defaulting Bank pursuant to Section 3.4 with respect to such Defaulting Bank’s Pro Rata Share of the LC Obligations during the period such Defaulting Bank’s Pro Rata Share of the LC Obligations is cash collateralized;
(iv) if the non-Defaulting Banks’ Pro Rata Share of the LC Obligations is reallocated pursuant to this clause (c), then the fees payable to the Banks pursuant to Section 2.5(a) and Section 3.4 shall be adjusted in accordance with such non-Defaulting Banks’ Pro Rata Shares; or
(v) if any Defaulting Bank’s Pro Rata Share of the LC Obligations is neither reallocated nor cash collateralized pursuant to this clause (c), then, without prejudice to any rights or remedies of any LC Issuer provision of Section 4.2 or any Bank hereunder, all fees that otherwise would have been payable to such Defaulting Bank (solely with respect to the portion of such Defaulting Bank’s Commitment that was utilized by such LC Obligations) and LC Fees payable under Section 3.4 with respect to such Defaulting Bank’s Pro Rata Share of the LC Obligations shall be payable to the applicable LC Issuer until such Defaulting Bank’s Pro Rata Share of the LC Obligation is cash collateralized and/or reallocated; and
(d) so long as any Bank is a Defaulting Bank, no LC Issuer shall be required to issue or Modify any Facility LC, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Banks and/or cash collateral will be provided by the Company in accordance with clause (c) above, and participating interests in any such newly issued or Modified Facility LC shall be allocated among non-Defaulting Banks 10.1 in a manner consistent with clause(c)(i) above (and Defaulting Banks shall not participate therein).
(e) If (i) a Bankruptcy Event with respect to a Parent that would alter the pro rata sharing of any Bank shall occur following the date hereof and for so long as such event shall continue payments required thereby, or (ii) causing the reduction of the percentage specified in the definition of Majority Banks, or (iii) causing the consent to the assignment or transfer by the Borrower of any LC Issuer has a good faith belief that any Bank has defaulted in fulfilling of its respective rights and obligations under one or more this Agreement and the other agreements Loan Documents, in which such Bank commits to extend credit, such LC Issuer shall not be required to issue, amend or increase any Facility LC, unless such LC Issuer, as each case without the case may be, shall have entered into arrangements with the Company or consent of such Bank, satisfactory to such LC Issuer, as the case may be, to defease any risk to it in respect of such Bank hereunder.;
(fb) In If the event that Borrower and the Agent, the Company, and each LC Issuer each agrees Administrative Agent agree in writing in their sole discretion that a Defaulting Bank has adequately remedied all matters that caused such Bank should no longer be deemed to be a Defaulting Bank, then the Banks’ Pro Rata Shares Administrative Agent will so notify the parties hereto, whereupon that Bank will cease to be a Defaulting Bank; provided that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Bank to Bank will constitute a waiver or release of the LC Obligations shall be readjusted to reflect the inclusion any claim of such any party hereunder arising from that Bank’s Commitment having been a Defaulting Bank; and
(c) The rights and on such date such remedies against, and with respect to, a Defaulting Bank shall purchase under this Section 2.3 are in addition to, and cumulative and not in limitation of, all other rights and remedies that the Administrative Agent and each Bank or the Borrower may at par such of the Loans of the other Banks as the Agent shall determine may be necessary in order for such Bank to hold such Loans in accordance any time have against, or with its Pro Rata Share of the Aggregate Commitment; providedrespect to, that if the Company cash collateralized any portion of such Defaulting Bank’s Pro Rata Share of the LC Obligations pursuant to Section 4.7(c), such cash shall be returned to the Company.
Appears in 1 contract
Sources: Term Loan Agreement (Centerpoint Energy Resources Corp)
Defaulting Banks. Notwithstanding any provision of this Agreement to the contrary, if any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Commitment Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Bank pursuant to Section 2.5(a);2.06.
(b) the Commitment The Commitments and Outstanding Credit Exposure Loans of such Defaulting Bank shall not be included in determining whether all Banks or the Majority Banks have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.1); provided, that, except as otherwise provided in Section 10.1, this clause (b) shall not apply to the vote of a Defaulting Bank in the case of an amendment, waiver or other modification pursuant to Section 11.04); provided that any waiver, amendment or modification (x) increasing or extending the term of the Commitment of, reducing amounts owed to or extending the final maturity of the loans of such Defaulting Bank or (y) requiring the consent of such Bank all Banks or each affected Bank directly which affects such Defaulting Bank differently than other affected therebyBanks shall, in each case, require the consent of such Defaulting Bank;
(c) if If any LC Obligations exist L/C Exposure exists at the time a such Bank becomes a Defaulting Bank then:
(i) so long as no Default or Event of Default shall be continuing immediately before or after giving effect to such reallocation, all or any part of the L/C Exposure of such LC Obligation Defaulting Bank shall be reallocated among the non-Defaulting Banks in accordance with their respective Pro Rata Share Revolving Percentages but only to the extent that (xi) the sum of all non-Defaulting Banks’ Outstanding Revolving Extensions of Credit plus such Defaulting Bank’s L/C Exposure does not exceed the total of all non-Defaulting Banks’ CommitmentsCommitments and ii) with respect to each such non-Defaulting Bank, (y) no the sum of such non-Defaulting Bank’s Outstanding Revolving Extensions of Credit plus its allocated percentage of such Defaulting Bank’s LC Exposure shall does not exceed its Commitment and (z) the conditions set forth in Section 11.2 are satisfied at such timenon-Defaulting Bank’s Commitment;
(ii) if If the reallocation described in subclause clause (i) above cannot, or can only partially, be effected, the Company shall within one (1) Business Day following notice by the Agent, Administrative Agent cash collateralize for the benefit of the relevant LC Issuer applicable Issuing Lenders only the Company’s obligations corresponding to such Defaulting Bank’s Pro Rata Share of the LC Obligations L/C Exposure (after giving effect to any partial reallocation pursuant to subclause clause (i) above) in accordance with the procedures set forth in Section 9.2 for so long as such LC Obligation L/C Exposure is outstanding;
(iii) if If the Company cash collateralizes any portion of such Defaulting Bank’s Pro Rata Share of the LC Obligations L/C Exposure pursuant this to clause (c)ii) above, the Company shall not be required to pay any fees to such Defaulting Bank pursuant to Section 3.4 2.04(c)(i) with respect to such Defaulting Bank’s Pro Rata Share of the LC Obligations L/C Exposure during the period such Defaulting Bank’s Pro Rata Share of the LC Obligations L/C Exposure is cash collateralized;
(iv) if If the L/C Exposure of the non-Defaulting Banks’ Pro Rata Share of the LC Obligations Bank is reallocated pursuant to this clause (c)i) above, then the fees payable to the Banks pursuant to Section 2.5(a2.06(a) and Section 3.4 2.04(c)(i) shall be adjusted in accordance with such non-Defaulting Banks’ Pro Rata SharesRevolving Percentages; orand
(v) if If all or any portion of such Defaulting Bank’s Pro Rata Share of the LC Obligations L/C Exposure is neither reallocated nor cash collateralized pursuant to this clause (c)i) or (ii) above, then, without prejudice to any rights or remedies of any LC Issuer Issuing Lender or any other Bank hereunder, all fees that otherwise would have been payable to such Defaulting Bank (solely with respect to the portion of such Defaulting Bank’s Commitment that was utilized by such LC Obligations) and LC Fees payable under Section 3.4 2.04(c)(i) with respect to such Defaulting Bank’s Pro Rata Share of the LC Obligations L/C Exposure shall be payable to such Issuing Lender until and to the applicable LC Issuer until extent that such Defaulting Bank’s Pro Rata Share of the LC Obligation L/C Exposure is reallocated and/or cash collateralized and/or reallocated; andcollateralized;
(d) so long as any such Bank is a Defaulting Bank, no LC Issuer Issuing Lender shall be required to issue issue, amend or Modify increase any Facility LCLetter of Credit, unless it is satisfied that the related exposure and the Defaulting Bank’s then outstanding L/C Exposure will be 100% covered by the Commitments of the non-Defaulting Banks and/or cash collateral will be provided by the Company in accordance with clause (c) aboveSection 2.12(c), and participating interests in any such newly issued or Modified Facility LC increased Letter of Credit shall be allocated among non-Defaulting Banks in a manner consistent with clause(c)(iSection 2.12(c) above (and such Defaulting Banks Bank shall not participate therein).
(e) If Any amount payable to such Defaulting Bank hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Bank pursuant to Section 4.07(b) but excluding Section 5.07) shall, in lieu of being distributed to such Defaulting Bank, be retained by the Administrative Agent in a segregated account and, subject to any applicable requirements of law, be applied at such time or times as may be determined by the Administrative Agent (i) first, to the payment of any amounts owing by such Defaulting Bank to the Administrative Agent and the Issuing Lenders hereunder, (ii) second, to the funding of any Loan or participation in any Letter of Credit in respect of which such Defaulting Bank has failed to fund its portion thereof as required by this Agreement, (iii) third, if so determined by the Administrative Agent and the Company, held in such account as cash collateral for future funding obligations of the Defaulting Bank in respect of any Loans or participations in Letters of Credit under this Agreement, (iv) fourth, to the payment of any amounts then owing to the Banks or Issuing Lenders as a Bankruptcy Event result of any judgment of a court of competent jurisdiction obtained by any Bank or Issuing Lender against such Defaulting Bank as a result of such Defaulting Bank’s breach of its obligations under this Agreement, (v) fifth, to the payment of any amounts then owing to the Company as a result of any judgment of a court of competent jurisdiction obtained by the Company against such Defaulting Bank as a result of such Defaulting Bank’s breach of its obligations under this Agreement, and (vi) sixth, to such Defaulting Bank or as otherwise directed by a court of competent jurisdiction; provided, with respect to this clause (vi), that if such payment is (x) a Parent prepayment of the principal amount of any Bank shall occur following Loans and (y) made at a time when the date hereof and for so long as such event shall continue or (ii) any LC Issuer has a good faith belief that any Bank has defaulted conditions set forth in fulfilling its obligations under one or more other agreements in which such Bank commits to extend creditSection 6.02 are satisfied, such LC Issuer payment shall not be required applied solely to issueprepay the Loans of all non-Defaulting Banks pro rata prior to being applied to the prepayment of any Loans, amend or increase reimbursement obligations owed to, any Facility LC, unless such LC Issuer, as the case may be, shall have entered into arrangements with the Company or such Defaulting Bank, satisfactory to such LC Issuer, as the case may be, to defease any risk to it in respect of such Bank hereunder.
(f) . In the event that the Administrative Agent, the Company, Issuing Lenders and each LC Issuer the Company each agrees that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the Banks’ Pro Rata Shares L/C Exposure of the LC Obligations Banks shall be readjusted to reflect the inclusion of such Bank’s Commitment and on such date such previously Defaulting Bank shall purchase at par such of the Loans of the other Banks (other than Money Market Loans) as the Administrative Agent shall determine may be necessary in order for such previously Defaulting Bank to hold such Loans in accordance with its Pro Rata Share of the Aggregate Commitment; provided, that if the Company cash collateralized any portion of such Defaulting Bank’s Pro Rata Share of the LC Obligations pursuant to Section 4.7(c), such cash shall be returned to the CompanyRevolving Percentage.
Appears in 1 contract
Sources: Revolving Credit Agreement (Motorola Solutions, Inc.)
Defaulting Banks. (a) Notwithstanding any provision of this Agreement to the contrary, if any Bank becomes a one or more Revolving Banks become Defaulting BankBanks, then the following provisions shall apply for so long as any such Bank is a Defaulting Bank:
(ai) Commitment Fees no commitment fee shall cease to accrue on the unfunded portion unused amount of the any Revolving Commitment of such any Defaulting Bank pursuant to Section 2.5(a2.8(a);
(bii) the Commitment Revolving Commitments and Outstanding Credit Exposure Revolving Exposures of such each Defaulting Bank shall not be included disregarded in determining whether the Majority Required Revolving Banks, Required Banks or any other requisite Banks shall have taken or may take any action hereunder or under any other Loan Document (including any consent to any waiver, amendment or waiver other modification pursuant to Section 10.19.5); provided that any waiver, amendment, or other modification that, disregarding the effect of this clause (ii), requires the consent of each Bank directly affected thereby pursuant to clause (1)(a), (1)(b), (1)(c) or (1)(d) of Section 9.5 shall continue to require the consent of each Defaulting Bank directly affected thereby in accordance with the terms hereof; provided, thatfurther, except as otherwise provided in that any waiver, amendment or other modification of this Section 10.1, this 2.20(a)(ii) or clause (b1)(a), (1)(b), (1)(c) shall not apply to the vote or (1)(d) of Section 9.5 at any time that a Bank is a Defaulting Bank in the case of an amendment, waiver or other modification requiring shall require the consent of such Defaulting Bank or each if such Defaulting Bank would be directly adversely affected thereby;
(c1) in the case of a Defaulting Bank that is a Dollar Revolving Bank, if any Dollar LC Obligations exist Exposure or Swingline Exposure exists at the time a such Dollar Revolving Bank becomes a Defaulting Bank or (2) in the case of a Defaulting Bank that is a Multi-Currency Revolving Bank, if any Multi-Currency LC Exposure exists at the time such Multi-Currency Bank becomes a Defaulting Bank (each Swingline Loan to which such Swingline Exposure is attributable being referred to as a “Reallocated Swingline Loan” and each Letter of Credit to which such LC Exposure is attributable being referred to as a “Reallocated Letter of Credit”), then:
(iA) so long as no Default subject to clause (B) below, the participation of each Non-Defaulting Bank of such Class in each Reallocated Swingline Loan (if applicable) or Event Reallocated Letter of Default Credit of such Class shall be continuing immediately before adjusted to be determined under Section 2.18(d) or 2.23 on the basis of such Revolving Bank’s Adjusted Dollar Applicable Percentage or Adjusted Multi-Currency Applicable Percentage, as the case may be (and all references in Section 2.18 or 2.23 to “Dollar Applicable Percentage” or “Multi-Currency Applicable Percentage” shall be deemed to be references to “Adjusted Dollar Applicable Percentage” or “Adjusted Multi-Currency Applicable Percentage”, as the case may be);
(B) notwithstanding the foregoing:
(1) if any Revolving Bank that becomes a Defaulting Bank shall be the Swingline Bank or an Issuing Bank or an Affiliate thereof, no adjustment shall be made pursuant to clause (A) above with respect to participations in any Swingline Loan made by the Swingline Bank or any Letter of Credit issued by such Issuing Bank, as the case may be;
(2) if all the Defaulting Banks’ Applicable Percentage of the LC Exposure of any Class attributable to the Reallocated Letters of Credit of such Class (the “Defaulting Bank LC Exposure”) and, in the case of Dollar Revolving Banks, the Swingline Exposure attributable to the Reallocated Swingline Loans (the “Defaulting Bank Swingline Exposure”) collectively exceed the unused portion of the Revolving Commitments of the Non-Defaulting Banks of such Class as of the time the adjustments are to be made pursuant to clause (A) above (any such unused portion being referred to as the “Maximum Incremental Participation Amount”), then the incremental amount of participations in Letters of Credit of such Class and, in the case of Dollar Revolving Banks, Swingline Loans acquired by the Non-Defaulting Banks under clause (A) above (the “Incremental Participations”) shall not exceed at any time the Maximum Incremental Participation Amount with respect to such Class;
(3) adjustments under Section 2.20(a)(iii)(A) and (B) above shall only be made to the extent that, after giving effect to such reallocationadjustments, all the Revolving Exposure of any Non-Defaulting Bank with respect to any Class shall not exceed its Revolving Commitment with respect to such Class; and
(4) no adjustment shall be made under Section 2.20(a)(iii)(A) or (B) above if, at the time such adjustment is made, an Event of Default has occurred and is continuing;
(C) if the Defaulting Bank LC Exposure with respect to any part Class and Defaulting Bank Swingline Exposure (in the case of Dollar Revolving Banks) collectively exceed the Maximum Incremental Participation Amount with respect to such Class, then the applicable Borrower or applicable Additional Borrower shall, within five Domestic Business Days after receipt of written notice to that effect from the Administrative Agent, cash collateralize the Reallocated Letters of Credit of such Class and, in the case of Dollar Revolving Banks, prepay the Reallocated Swingline Loans (in a manner and under documentation reasonably satisfactory to the Administrative Agent) in an aggregate amount equal to the excess, if any, of the Defaulting Bank LC Obligation Exposure of such Class and, in the case of Dollar Revolving Banks, Defaulting Bank Swingline Exposure over the Maximum Incremental Participation Amount of such Class or, if agreed to by the applicable Issuing Bank and/or Swingline Bank, enter into other arrangements with respect to the Reallocated Letters of Credit of such Class or Reallocated Swingline Loans on terms mutually agreed between such Issuing Bank or the Swingline Bank, on the one hand, and the applicable Borrower or applicable Additional Borrower, on the other hand;
(D) if any Reallocated Letter of Credit shall have been cash collateralized by the applicable Borrower or applicable Additional Borrower pursuant to clause (C) above, then (x) the applicable Borrower or applicable Additional Borrower shall not be required to pay any letter of credit participation fees pursuant to Section 2.8(b) with respect to the portion of such Reallocated Letter of Credit that is so cash collateralized and (y) to the extent any letter of credit participation fees are not required to be paid by reason of clause (x) above, the reduction in the amount of such fees shall be reallocated among allocated to the nonDefaulting Banks;
(E) if an adjustment shall have been made pursuant to clause (A) above to the participations of the Non-Defaulting Banks in Reallocated Letters of Credit of any Class, then the letter of credit participation fees that would otherwise have been payable to the Revolving Banks that are Defaulting Banks pursuant to Section 2.8(b) with respect to the portion of such Reallocated Letters of Credit of such Class equal to the Incremental Participations therein shall instead accrue for the accounts of, and be payable to, the Revolving Banks of such Class that are Non-Defaulting Banks in accordance with their respective Pro Rata Share but only Adjusted Dollar Applicable Percentages or Adjusted Multi-Currency Applicable Percentages, as the case may be;
(F) if the Defaulting Bank LC Exposure with respect to the extent that (x) any Class at any time shall exceed the sum of all non-Defaulting Banks’ Outstanding the Incremental Participations in respect of Letters of Credit Exposure does not exceed the total of all non-Defaulting Banks’ Commitments, (y) no Bank’s Outstanding Credit Exposure shall exceed its Commitment and (z) the conditions set forth in Section 11.2 are satisfied such Class at such time;
(ii) if time and the reallocation described in subclause (i) above cannot, or can only partially, be effected, the Company shall within one (1) Business Day following notice by the Agent, cash collateralize for the benefit portion of the relevant LC Issuer Reallocated Letters of Credit of such Defaulting Bank’s Pro Rata Share of the LC Obligations (after giving effect to any partial reallocation Class cash collateralized at such time pursuant to subclause clause (iC) above) in accordance with the procedures set forth in Section 9.2 for so long as such LC Obligation is outstanding;
(iii) if the Company cash collateralizes any portion of such Defaulting Bank’s Pro Rata Share of the LC Obligations pursuant this clause (c), the Company shall not be required to pay any fees to such Defaulting Bank pursuant to Section 3.4 with respect to such Defaulting Bank’s Pro Rata Share of the LC Obligations during the period such Defaulting Bank’s Pro Rata Share of the LC Obligations is cash collateralized;
(iv) if the non-Defaulting Banks’ Pro Rata Share of the LC Obligations is reallocated pursuant to this clause (c), then the fees payable to the Banks pursuant to Section 2.5(a) and Section 3.4 shall be adjusted in accordance with such non-Defaulting Banks’ Pro Rata Shares; or
(v) if any Defaulting Bank’s Pro Rata Share of the LC Obligations is neither reallocated nor cash collateralized pursuant to this clause (c), then, without prejudice to any rights or remedies of any LC Issuer Issuing Bank or any Non-Defaulting Bank hereunder, all letter of credit participation fees that otherwise would have been payable to the Revolving Banks of such Class that are Defaulting Bank (solely Banks under Section 2.8(b) with respect to the portion of the Defaulting Bank LC Exposure of such Class equal to such excess shall instead accrue for the account of, and be payable to, the applicable Issuing Bank that shall have issued the Reallocated Letters of Credit of such Class; and
(G) the Revolving Exposure of each Non-Defaulting Bank’s Commitment that was utilized Bank with respect to any Class shall be determined after giving effect to the Incremental Participations acquired by such LC Obligations) and LC Fees payable under Section 3.4 Revolving Bank with respect to such Defaulting Bank’s Pro Rata Share Class under the foregoing clauses of this clause (iii);
(iv) in the event any (x) Letter of Credit shall be issued or amended to increase the amount thereof or (y) in the case of Dollar Revolving Banks, Swingline Loan shall be made, (A) the participations of the LC Obligations Non-Defaulting Banks of such Class therein shall be determined in the manner set forth in clause (iii)(A) above, as if such Letter of Credit of such Class or Swingline Loan shall have been a Reallocated Letter of Credit of such Class or a Reallocated Swingline Loan, as the case may be, and (B) letter of credit participation fees that would otherwise have been payable to the applicable LC Issuer until Revolving Banks of such Class that are Defaulting Bank’s Pro Rata Share Banks pursuant to Section 2.8(b) in respect of any such Letter of Credit shall be subject to Section 2.20(a)(iii)(E) above; provided, however, that, notwithstanding anything to the LC Obligation is cash collateralized and/or reallocated; and
(d) so long as any Bank is a Defaulting Bankcontrary set forth herein, no LC Issuer Issuing Bank of such Class or Swingline Bank shall be required to issue issue, extend, renew or Modify increase the amount of any Facility LCLetter of Credit of such Class or make any Swingline Loan, as applicable, unless it is satisfied that the related exposure Defaulting Banks’ Dollar Applicable Percentage or Multi-Currency Applicable Percentage, as applicable, of the LC Exposure with respect to such Class or Swingline Exposure, as applicable, attributable to such Letter of Credit or Swingline Loan, as applicable, will be 100% entirely covered by the Commitments participations therein of the nonNon-Defaulting Banks and/or cash collateral will be or other arrangements satisfactory to such Issuing Bank or Swingline Bank provided by the Company in accordance with clause applicable Borrower or applicable Additional Borrower (c) above, and participating interests in any such newly issued or Modified Facility LC shall be allocated among non-Defaulting Banks in a manner consistent with clause(c)(i) above (and Defaulting Banks shall not participate therein).
(e) If (i) a Bankruptcy Event with respect to a Parent of any Bank shall occur following the date hereof and for so long as such event shall continue or (ii) any LC Issuer has a good faith belief that any Bank has defaulted in fulfilling its obligations under one or more other agreements in which such Bank commits to extend credit, such LC Issuer shall not be required to issue, amend or increase any Facility LC, unless such LC Issuer, as the case may be, shall have entered into arrangements with the Company or such Bank, documentation satisfactory to such LC IssuerIssuing Bank or Swingline Bank, as applicable); and
(v) any amount payable to or for the case account of any Defaulting Bank in its capacity as a Bank hereunder (whether on account of principal, interest, fees or otherwise, and including any amounts payable to such Defaulting Bank pursuant to Sections 2.10 and 2.11, but excluding any amounts payable to such Defaulting Bank pursuant to Sections 2.13, 2.15, 2.17, 8.3 and 9.3) shall, in lieu of being distributed to such Defaulting Bank, be retained by the Administrative Agent in a segregated account and, subject to any applicable requirements of law, (A) be applied, at such time or times as may bebe determined by the Administrative Agent, (1) first, to defease the payment of any risk amounts owing by such Defaulting Bank to it the Administrative Agent hereunder, (2) second to the payment on a pro rata basis of any amounts owing by such Defaulting Bank to each Issuing Bank and Swingline Bank in respect of such Defaulting Bank’s participations in Letters of Credit and Swingline Loans (and to the extent any such amounts shall have been paid by Non-Defaulting Banks as a result of adjustments pursuant to clause (iii) above, to reimburse such Non-Defaulting Banks for such amounts), (3) third, to cash collateralize participation obligations of such Defaulting Bank in respect of outstanding Letters of Credit (with the concurrent release of an equivalent amount any cash collateral or other collateral security, if any, provided by the applicable Borrower pursuant to this Section) and prepay Swingline Loans on a pro rata basis and (4) fourth, to the funding of such Defaulting Bank’s Applicable Percentage of any Revolving Borrowing in respect of which such Defaulting Bank shall have failed to fund such share as required hereunder, (B) to the extent not applied as aforesaid, be held, if so determined by the Administrative Agent, as cash collateral for funding obligations of such Defaulting Bank in respect of future Loans hereunder, (C) to the extent not applied or held as aforesaid, be applied, pro rata, to the payment of any amounts owing to any Borrower or the Non-Defaulting Banks as a result of any judgment of a court of competent jurisdiction obtained by any Borrower or any Non-Defaulting Bank against such Defaulting Bank as a result of such Defaulting Bank’s breach of its obligations hereunder and (D) to the extent not applied or held as aforesaid, be distributed to such Defaulting Bank or as otherwise directed by a court of competent jurisdiction.
(fb) In the event that the Administrative Agent, the CompanyIssuing Banks of such Class, the Swingline Bank (solely in the case of Defaulting Banks that are Dollar Revolving Banks) and each LC Issuer each agrees the Borrowers shall have agreed that a Revolving Bank that is a Defaulting Bank has adequately remedied all matters that caused such Revolving Bank to be become a Defaulting Bank, then (i) such Revolving Bank shall cease to be a Defaulting Bank for all purposes hereof, (ii) the Banks’ Pro Rata Shares obligations of the LC Obligations Revolving Banks to purchase participations in Letters of Credit under Section 2.18(d) and Swingline Loans under Section 2.23 shall be readjusted to reflect be determined on the inclusion basis of such Bank’s Commitment Revolving Banks’ Dollar Applicable Percentages or Multi-Currency Applicable Percentages, as the case may be, and on (iii) such date such Revolving Bank shall purchase at par such of the Revolving Loans of the other Revolving Banks as the Administrative Agent shall determine may to be necessary in order for such Bank the Revolving Loans to hold such Loans be held by the Revolving Banks in accordance with their Dollar Applicable Percentages or Multi-Currency Applicable Percentages, as the case may be.
(c) No Revolving Commitment of any Revolving Bank shall be increased or otherwise affected and, except as otherwise expressly provided in this Section, performance by any Borrower or any Additional Borrower of its Pro Rata Share obligations hereunder and under the other Loan Documents shall not be excused or otherwise modified as a result of the Aggregate Commitment; providedoperation of this Section. The rights and remedies against a Defaulting Bank under this Section are in addition to other rights and remedies that any Borrower, that if any Additional Borrower, the Company cash collateralized Administrative Agent, the Issuing Banks, the Swingline Bank or any portion of Non-Defaulting Bank may have against such Defaulting Bank’s Pro Rata Share Bank (and, for the avoidance of doubt, each Non-Defaulting Bank shall have a claim against any Defaulting Bank for any losses it may suffer as a result of the LC Obligations pursuant to Section 4.7(coperation of this Section), such cash shall be returned to the Company.
Appears in 1 contract
Sources: Credit Agreement (Allegion PLC)
Defaulting Banks. Notwithstanding any provision of this Agreement to the contrary, if any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Commitment Facility Fees shall cease to accrue on the unfunded portion unused amount of the Revolving Credit Commitment of such Defaulting Bank pursuant to Section 2.5(a2.07(a);
(b) the Revolving Credit Commitment and Outstanding Revolving Credit Exposure of such Defaulting Bank shall not be included in determining whether the Majority Required Banks or any other requisite Banks have taken or may take any action hereunder (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 10.110.01); provided, that, except as otherwise provided in Section 10.1, this clause (b) shall not apply to the vote of a Defaulting Bank in the case of an that any amendment, waiver or other modification requiring the consent of all Banks or all Banks affected thereby shall, except as otherwise provided in Section 10.01, require the consent of such Defaulting Bank or each Bank directly affected therebyin accordance with the terms hereof;
(c) if any LC Obligations exist Exposure exists at the time a such Bank becomes a Defaulting Bank then:
(i) so long as no Default or Event of Default shall be continuing immediately before or after giving effect to such reallocation, all or any part the LC Exposure of such Defaulting Bank (other than any portion thereof attributable to unreimbursed LC Obligation Disbursements with respect to which such Defaulting Bank shall have funded its participation as contemplated by Sections 2.03(d) and 2.03(e)) shall be reallocated among the nonNon-Defaulting Banks in accordance with their respective Pro Rata Share Proportional Shares but only to the extent that (x) the sum of all nonNon-Defaulting Banks’ Outstanding Revolving Credit Exposures plus such Defaulting Bank’s LC Exposure (excluding the portion thereof referred to above) does not exceed the total sum of all nonNon-Defaulting Banks’ Revolving Credit Commitments, (y) no Bank’s Outstanding Credit Exposure shall exceed its Commitment and (z) the conditions set forth in Section 11.2 are satisfied at such time;
(ii) if the reallocation described in subclause clause (i) above cannot, or can only partially, be effected, the Company shall within one (1) Business Day following notice by the Administrative Agent, cash collateralize for the benefit of the relevant LC Issuer Issuing Banks the portion of such Defaulting Bank’s Pro Rata Share of LC Exposure (other than any portion thereof referred to in the LC Obligations (after giving effect to any partial reallocation pursuant to subclause parenthetical in such clause (i)) above) that has not been reallocated, in accordance with the procedures set forth in Section 9.2 2.03(j), for so long as such LC Obligation Exposure is outstanding;
(iii) if the Company cash collateralizes any portion of such Defaulting Bank’s Pro Rata Share of the LC Obligations Exposure pursuant this to clause (c)ii) above, the Company shall not be required to pay any participation fees to such Defaulting Bank pursuant to Section 3.4 2.07(b) with respect to such Defaulting Bank’s Pro Rata Share portion of the LC Obligations during the period such Defaulting Bank’s Pro Rata Share of the LC Obligations Exposure for so long as such Defaulting Bank’s LC Exposure is cash collateralized;
(iv) if the non-Defaulting Banks’ Pro Rata Share any portion of the LC Obligations Exposure of such Defaulting Bank is reallocated pursuant to this clause (c)i) above, then the participation fees payable to the Banks pursuant to Section 2.5(a2.07(b) and Section 3.4 shall be adjusted in accordance with to give effect to such non-Defaulting Banks’ Pro Rata Sharesreallocation; orand
(v) if all or any portion of such Defaulting Bank’s Pro Rata Share of LC Exposure (other than any portion thereof referred to in the LC Obligations parenthetical in clause (i) above) is neither reallocated nor cash collateralized pursuant to this clause (c)i) or (ii) above, then, without prejudice to any rights or remedies of any LC Issuer Issuing Bank or any other Bank hereunder, all participation fees that otherwise would have been payable to such Defaulting Bank (solely with respect to the portion of such Defaulting Bank’s Commitment that was utilized by such LC Obligations) and LC Fees payable under Section 3.4 2.07(b) with respect to such Defaulting Bank’s Pro Rata Share of the LC Obligations Exposure shall be payable to the applicable LC Issuer until Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Bank’s Pro Rata Share LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Obligation Exposure is reallocated and/or cash collateralized and/or reallocatedcollateralized; and
(dvi) so long as any such Bank is a Defaulting Bank, no LC Issuer Issuing Bank shall be required to issue issue, amend, renew or Modify extend any Facility LC, Letter of Credit unless it is satisfied that the related exposure and the Defaulting Bank’s then outstanding LC Exposure will be 100% fully covered by the Revolving Credit Commitments of the nonNon-Defaulting Banks and/or cash collateral will be provided by the Company in accordance with clause (c) aboveSection 2.03(j), and participating interests in any such newly issued issued, amended, renewed or Modified Facility LC shall extended Letter of Credit will be allocated among nonthe Non-Defaulting Banks in a manner consistent with clause(c)(iSection 2.14(c)(i) above (and such Defaulting Banks Bank shall not participate therein).
(e) If (i) a Bankruptcy Event with respect to a Parent of any Bank shall occur following the date hereof and for so long as such event shall continue or (ii) any LC Issuer has a good faith belief that any Bank has defaulted in fulfilling its obligations under one or more other agreements in which such Bank commits to extend credit, such LC Issuer shall not be required to issue, amend or increase any Facility LC, unless such LC Issuer, as the case may be, shall have entered into arrangements with the Company or such Bank, satisfactory to such LC Issuer, as the case may be, to defease any risk to it in respect of such Bank hereunder.
(f) . In the event that the Administrative Agent, the Company, Company and each LC Issuer Issuing Bank each agrees agree that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the Banks’ Pro Rata Shares LC Exposures of the LC Obligations Banks shall be readjusted to reflect the inclusion of such Bank’s Revolving Credit Commitment and on such date such Bank shall purchase at par such of the Loans of the other Banks (other than Competitive Loans) as the Administrative Agent shall determine may be necessary in order for such Bank to hold such Loans in accordance with its Pro Rata Share Proportional Share. Subject to Section 10.19, no reallocation hereunder shall constitute a waiver or release of the Aggregate Commitment; providedany claim of any party hereunder against a Defaulting Bank arising from that Bank having become a Defaulting Bank, that if the Company cash collateralized including any portion claim of a Non-Defaulting Bank as a result of such Non-Defaulting Bank’s Pro Rata Share of the LC Obligations pursuant to Section 4.7(c), increased exposure following such cash shall be returned to the Companyreallocation.
Appears in 1 contract
Defaulting Banks. Notwithstanding any provision of this Agreement to the contrary, if any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Commitment Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Bank pursuant to Section 2.5(a);2.06.
(b) the Commitment The Commitments and Outstanding Credit Exposure Loans of such Defaulting Bank shall not be included in determining whether all Banks or the Majority Banks have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.1); provided, that, except as otherwise provided in Section 10.1, this clause (b) shall not apply to the vote of a Defaulting Bank in the case of an amendment, waiver or other modification pursuant to Section 11.04); provided that any waiver, amendment or modification (x) increasing or extending the term of the Commitment of such Defaulting Bank or (y) requiring the consent of such Bank all Banks or each affected Bank directly which affects such Defaulting Bank differently than other affected therebyBanks shall, in each case, require the consent of such Defaulting Bank;
(c) if If any LC Obligations exist L/C Exposure exists at the time a such Bank becomes a Defaulting Bank then:
(i) so long as no Default or Event of Default shall be continuing immediately before or after giving effect to such reallocation, all or any part of the L/C Exposure of such LC Obligation Defaulting Bank shall be reallocated among the non-Defaulting Banks in accordance with their respective Pro Rata Share Revolving Percentages but only to the extent that (x) the sum of all non-Defaulting Banks’ Outstanding Revolving Extensions of Credit plus such Defaulting Bank’s L/C Exposure does not exceed the total of all non-Defaulting Banks’ Commitments, (y) no Bank’s Outstanding Credit Exposure shall exceed its Commitment and (z) the conditions set forth in Section 11.2 are satisfied at such time;
(ii) if If the reallocation described in subclause clause (i) above cannot, or can only partially, be effected, the Company shall within one (1) Business Day following notice by the Agent, Administrative Agent cash collateralize for the benefit of the relevant LC Issuer applicable Issuing Lenders only the Company’s obligations corresponding to such Defaulting Bank’s Pro Rata Share of the LC Obligations L/C Exposure (after giving effect to any partial reallocation pursuant to subclause clause (i) above) in accordance with the procedures set forth in Section 9.2 for so long as such LC Obligation L/C Exposure is outstanding;
(iii) if If the Company cash collateralizes any portion of such Defaulting Bank’s Pro Rata Share of the LC Obligations L/C Exposure pursuant this to clause (c)ii) above, the Company shall not be required to pay any fees to such Defaulting Bank pursuant to Section 3.4 2.04(c)(i) with respect to such Defaulting Bank’s Pro Rata Share of the LC Obligations L/C Exposure during the period such Defaulting Bank’s Pro Rata Share of the LC Obligations L/C Exposure is cash collateralized;
(iv) if If the L/C Exposure of the non-Defaulting Banks’ Pro Rata Share of the LC Obligations Bank is reallocated pursuant to this clause (c)i) above, then the fees payable to the Banks pursuant to Section 2.5(a2.06(a) and Section 3.4 2.04(c)(i) shall be adjusted in accordance with such non-Defaulting Banks’ Pro Rata SharesRevolving Percentages; orand
(v) if If all or any portion of such Defaulting Bank’s Pro Rata Share of the LC Obligations L/C Exposure is neither reallocated nor cash collateralized pursuant to this clause (c)i) or (ii) above, then, without prejudice to any rights or remedies of any LC Issuer Issuing Lender or any other Bank hereunder, all fees that otherwise would have been payable to such Defaulting Bank (solely with respect to the portion of such Defaulting Bank’s Commitment that was utilized by such LC Obligations) and LC Fees payable under Section 3.4 2.04(c)(i) with respect to such Defaulting Bank’s Pro Rata Share of the LC Obligations L/C Exposure shall be payable to such Issuing Lender until and to the applicable LC Issuer until extent that such Defaulting Bank’s Pro Rata Share of the LC Obligation L/C Exposure is reallocated and/or cash collateralized and/or reallocated; andcollateralized;
(d) so long as any such Bank is a Defaulting Bank, no LC Issuer Issuing Lender shall be required to issue issue, amend or Modify increase any Facility LCLetter of Credit, unless it is satisfied that the related exposure and the Defaulting Bank’s then outstanding L/C Exposure will be 100% covered by the Commitments of the non-Defaulting Banks and/or cash collateral will be provided by the Company in accordance with clause (c) aboveSection 2.12(c), and participating interests in any such newly issued or Modified Facility LC increased Letter of Credit shall be allocated among non-Defaulting Banks in a manner consistent with clause(c)(iSection 2.12(c) above (and such Defaulting Banks Bank shall not participate therein).
(e) If Any amount payable to such Defaulting Bank hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Bank pursuant to Section 4.07(b) but excluding Section 5.07) shall, in lieu of being distributed to such Defaulting Bank, be retained by the Administrative Agent in a segregated account and, subject to any applicable requirements of law, be applied at such time or times as may be determined by the Administrative Agent (i) first, to the payment of any amounts owing by such Defaulting Bank to the Administrative Agent and the Issuing Lenders hereunder, (ii) second, to the funding of any Loan or participation in any Letter of Credit in respect of which such Defaulting Bank has failed to fund its portion thereof as required by this Agreement, (iii) third, if so determined by the Administrative Agent and the Company, held in such account as cash collateral for future funding obligations of the Defaulting Bank in respect of any Loans or participations in Letters of Credit under this Agreement, (iv) fourth, to the payment of any amounts then owing to the Banks or Issuing Lenders as a Bankruptcy Event result of any judgment of a court of competent jurisdiction obtained by any Bank or Issuing Lender against such Defaulting Bank as a result of such Defaulting Bank’s breach of its obligations under this Agreement, (v) fifth, to the payment of any amounts then owing to the Company as a result of any judgment of a court of competent jurisdiction obtained by the Company against such Defaulting Bank as a result of such Defaulting Bank’s breach of its obligations under this Agreement, and (vi) sixth, to such Defaulting Bank or as otherwise directed by a court of competent jurisdiction; provided, with respect to this clause (vi), that if such payment is (x) a Parent prepayment of the principal amount of any Bank shall occur following Loans and (y) made at a time when the date hereof and for so long as such event shall continue or (ii) any LC Issuer has a good faith belief that any Bank has defaulted conditions set forth in fulfilling its obligations under one or more other agreements in which such Bank commits to extend creditSection 6.02 are satisfied, such LC Issuer payment shall not be required applied solely to issueprepay the Loans of all non-Defaulting Banks pro rata prior to being applied to the prepayment of any Loans, amend or increase reimbursement obligations owed to, any Facility LC, unless such LC Issuer, as the case may be, shall have entered into arrangements with the Company or such Defaulting Bank, satisfactory to such LC Issuer, as the case may be, to defease any risk to it in respect of such Bank hereunder.
(f) . In the event that the Administrative Agent, the Company, Issuing Lenders and each LC Issuer the Company each agrees that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the Banks’ Pro Rata Shares L/C Exposure of the LC Obligations Banks shall be readjusted to reflect the inclusion of such Bank’s Commitment and on such date such previously Defaulting Bank shall purchase at par such of the Loans of the other Banks (other than Money Market Loans) as the Administrative Agent shall determine may be necessary in order for such previously Defaulting Bank to hold such Loans in accordance with its Pro Rata Share of the Aggregate Commitment; provided, that if the Company cash collateralized any portion of such Defaulting Bank’s Pro Rata Share of the LC Obligations pursuant to Section 4.7(c), such cash shall be returned to the CompanyRevolving Percentage.
Appears in 1 contract
Sources: Revolving Credit Agreement (Motorola Solutions, Inc.)
Defaulting Banks. Notwithstanding any provision of this Agreement to the contrary, if any Bank becomes a Defaulting Bank, then the Administrative Agent shall deliver written notice to such effect, upon the Administrative Agent’s obtaining knowledge of such event, to the Company and such Defaulting Bank, and the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Commitment Fees shall cease to accrue on the unfunded portion of with respect to the Commitment of such Defaulting Bank pursuant to Section 2.5(a);2.4.
(b) the The Commitment and Outstanding Revolving Credit Exposure of such Defaulting Bank shall not be included in determining whether all Banks or the Majority Banks have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.19.1); provided, thatprovided that any waiver, except as otherwise provided in Section 10.1, this clause (b) shall not apply to the vote of a Defaulting Bank in the case of an amendment, waiver amendment or other modification requiring the consent of all Banks or each affected Bank which would increase or extend the term of the Commitment of such Defaulting Bank or each which affects such Defaulting Bank directly differently than other affected thereby;Banks shall require the consent of such Defaulting Bank.
(c) if If any LC L/C Obligations exist at the time a Bank becomes a Defaulting Bank Bank, then:
(i) so long as no Default or Event of Default shall be continuing immediately before or after giving effect to such reallocation, all or any part of such LC Obligation L/C Obligations shall be reallocated among the non-Defaulting Banks ratably in accordance with their respective Pro Rata Share Commitments but only to the extent that (x) the sum of all non-Defaulting Banks’ Outstanding Revolving Credit Exposure Exposures does not then exceed the total of all non-Defaulting Banks’ Commitments, Commitments and (y) no Bank’s Outstanding Credit Exposure shall exceed its Commitment and (z) the conditions set forth in Section 11.2 4.3 are satisfied at such time;
(ii) if the reallocation described in subclause clause (i) above cannot, or can only partially, be effected, the Company shall within one (1) Business Day following notice by the Agent, Administrative Agent cash collateralize for the benefit of the relevant LC Issuer percentage such Defaulting Bank’s Pro Rata Share Commitment represents of the LC Total Commitment of the L/C Obligations (after giving effect to any partial reallocation pursuant to subclause clause (i) above) in accordance with the procedures set forth in Section 9.2 7.2 for so long as such LC Obligation is L/C Obligations are outstanding;
(iii) if the Company cash collateralizes any portion of such Defaulting Bank’s Pro Rata Share of the LC L/C Obligations pursuant to this clause (cSection 2.22(c), the Company shall not be required to pay any fees to such Defaulting Bank pursuant to Section 3.4 3.3 with respect to such Defaulting Bank’s Pro Rata Share portion of the LC L/C Obligations during the period of such Defaulting Bank’s Pro Rata Share of the LC Obligations is cash collateralizedcollateralization;
(iv) if the L/C Obligations of the non-Defaulting Banks’ Pro Rata Share of the LC Obligations is Banks are reallocated pursuant to this clause (cSection 2.22(c), then the fees payable to the Banks pursuant to Section 2.5(a) and Section 3.4 3.3 shall be adjusted ratably in accordance with such non-Defaulting Banks’ Pro Rata Sharestheir respective Commitments; orand
(v) if any Defaulting Bank’s Pro Rata Share of the LC L/C Obligations is are neither reallocated nor cash collateralized nor reallocated pursuant to this clause (cSection 2.22(c), then, without prejudice to any rights or remedies of any LC Issuer the applicable Issuing Bank or any Bank hereunder, all fees Commitment Fees that otherwise would have been payable to such Defaulting Bank (solely with respect to the portion of such Defaulting Bank’s Commitment that was utilized by such LC L/C Obligations) and LC Fees letter of credit fees payable under Section 3.4 3.3 with respect to such Defaulting Bank’s Pro Rata Share of the LC L/C Obligations shall be payable to the applicable LC Issuer Issuing Bank until such Defaulting Bank’s Pro Rata Share of the LC Obligation is L/C Obligations are cash collateralized and/or reallocated; and.
(d) so So long as any Bank is a Defaulting Bank, no LC Issuer the Issuing Bank shall not be required to issue issue, amend or Modify increase any Facility LCLetter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Banks and/or cash collateral will be provided by the Company in accordance with clause (c) aboveSection 2.22(c), and participating interests in any such newly issued or Modified Facility LC increased Letter of Credit shall be allocated among non-Defaulting Banks in a manner consistent with clause(c)(iSection 2.22(c)(i) above (and Defaulting Banks shall not participate therein).
(e) If Any amount payable to such Defaulting Bank hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Bank pursuant to Section 2.16, but excluding amounts payable pursuant to Section 2.23) shall, in lieu of being distributed to such Defaulting Bank, subject to any applicable requirements of law, be applied at such time or times as may be determined by the Administrative Agent (i) first, to the payment of any amounts owing by such Defaulting Bank to the Administrative Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Bank to the Issuing Bank hereunder, (iii) third, if so determined by the Administrative Agent or requested by an Issuing Bank, held in such account as cash collateral for future funding obligations of the Defaulting Bank in respect of any existing or future participating interest in any Letter of Credit, (iv) fourth, to the funding of any Loan in respect of which such Defaulting Bank has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (v) fifth, if so determined by the Administrative Agent and the Company, held in such account as cash collateral for future funding obligations of the Defaulting Bank in respect of any Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Banks or an Issuing Bank as a Bankruptcy Event result of any judgment of a court of competent jurisdiction obtained by any Bank or such Issuing Bank against such Defaulting Bank as a result of such Defaulting Bank’s breach of its obligations under this Agreement, (vii) seventh, 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 Bank as a result of such Defaulting Bank’s breach of its obligations under this Agreement, and (viii) eighth, to such Defaulting Bank or as otherwise directed by a court of competent jurisdiction, provided, with respect to this clause (viii), that if such payment is (x) a Parent prepayment of the principal amount of any Bank shall occur following the date hereof and for so long as such event shall continue Loans or (ii) any LC Issuer has a good faith belief that any Bank has defaulted in fulfilling its reimbursement obligations under one or more other agreements in which such Bank commits to extend credit, such LC Issuer shall not be required to issue, amend or increase any Facility LC, unless such LC Issuer, as the case may be, shall have entered into arrangements with the Company or such Bank, satisfactory to such LC Issuer, as the case may be, to defease any risk to it in respect of any drafts paid by an Issuing Bank under any Letters of Credit which a Defaulting Bank has funded its participation obligations and (y) made at a time when the conditions set forth in Section 4.3 are satisfied, such Bank hereunder.
(f) payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Banks pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Bank. In the event that the Administrative Agent, the Company, Issuing Bank and each LC Issuer the Company each agrees that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank or upon receipt by the Administrative Agent of the confirmation referred to in clause (c) of the definition of “Defaulting Bank”, as applicable, then the Banks’ Pro Rata Shares of the LC Obligations shall be readjusted to reflect the inclusion of such Bank’s Commitment and on such date such Bank shall purchase at par such portion of the Loans of the other Banks as the Administrative Agent shall determine may be necessary in order for such Bank to hold such Loans ratably in accordance with its Pro Rata Share of the Aggregate Commitment; provided, that if the Company cash collateralized any portion of such Defaulting Bank’s Pro Rata Share of the LC Obligations pursuant to Section 4.7(c), such cash shall be returned to the Company.
Appears in 1 contract
Sources: Revolving Credit Facility Agreement (Southwest Airlines Co)
Defaulting Banks. Notwithstanding any provision of this Agreement to the contrary, if any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Commitment Facility Fees shall cease to accrue on the unfunded portion unused amount of the Revolving Credit Commitment of such Defaulting Bank pursuant to Section 2.5(a2.07(a);
(b) the Revolving Credit Commitment and Outstanding Revolving Credit Exposure of such Defaulting Bank shall not be included in determining whether the Majority Required Banks or any other requisite Banks have taken or may take any action hereunder (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 10.110.01); provided, that, except as otherwise provided in Section 10.1, this clause (b) shall not apply to the vote of a Defaulting Bank in the case of an that any amendment, waiver or other modification requiring the consent of all Banks or all Banks affected thereby shall, except as otherwise provided in Section 10.01, require the consent of such Defaulting Bank or each Bank directly affected therebyin accordance with the terms hereof;
(c) if any LC Obligations exist Exposure exists at the time a such Bank becomes a Defaulting Bank then:
(i) so long as no Default or Event of Default shall be continuing immediately before or after giving effect to such reallocation, all or any part the LC Exposure of such Defaulting Bank (other than any portion thereof attributable to unreimbursed LC Obligation Disbursements with respect to which such Defaulting Bank shall have funded its participation as contemplated by Sections 2.03(d) and 2.03(e)) shall be reallocated among the nonNon-Defaulting Banks in accordance with their respective Pro Rata Share Proportional Shares but only to the extent that (x) such reallocation does not cause the aggregate Revolving Credit Exposure of any such Non-Defaulting Bank to exceed such Non-Defaulting Bank’s Revolving Credit Commitment and (y) the sum of all nonNon-Defaulting Banks’ Outstanding Revolving Credit Exposures plus such Defaulting Bank’s LC Exposure (excluding the portion thereof referred to above) does not exceed the total sum of all nonNon-Defaulting Banks’ Revolving Credit Commitments, (y) no Bank’s Outstanding Credit Exposure shall exceed its Commitment and (z) the conditions set forth in Section 11.2 are satisfied at such time;
(ii) if the reallocation described in subclause clause (i) above cannot, or can only partially, be effected, the Company shall within one (1) Business Day following notice by the Administrative Agent, cash collateralize for the benefit of the relevant LC Issuer Issuing Banks the portion of such Defaulting Bank’s Pro Rata Share of LC Exposure (other than any portion thereof referred to in the LC Obligations (after giving effect to any partial reallocation pursuant to subclause parenthetical in such clause (i)) above) that has not been reallocated, in accordance with the procedures set forth in Section 9.2 2.03(j), for so long as such LC Obligation Exposure is outstanding;
(iii) if the Company cash collateralizes any portion of such Defaulting Bank’s Pro Rata Share of the LC Obligations Exposure pursuant this to clause (c)ii) above, the Company shall not be required to pay any participation fees to such Defaulting Bank pursuant to Section 3.4 2.07(b) with respect to such Defaulting Bank’s Pro Rata Share portion of the LC Obligations during the period such Defaulting Bank’s Pro Rata Share of the LC Obligations Exposure for so long as such Defaulting Bank’s LC Exposure is cash collateralized;
(iv) if the non-Defaulting Banks’ Pro Rata Share any portion of the LC Obligations Exposure of such Defaulting Bank is reallocated pursuant to this clause (c)i) above, then the participation fees payable to the Banks pursuant to Section 2.5(a2.07(b) and Section 3.4 shall be adjusted in accordance with to give effect to such non-Defaulting Banks’ Pro Rata Sharesreallocation; orand
(v) if all or any portion of such Defaulting Bank’s Pro Rata Share of LC Exposure (other than any portion thereof referred to in the LC Obligations parenthetical in clause (i) above) is neither reallocated nor cash collateralized pursuant to this clause (c)i) or (ii) above, then, without prejudice to any rights or remedies of any LC Issuer Issuing Bank or any other Bank hereunder, all participation fees that otherwise would have been payable to such Defaulting Bank (solely with respect to the portion of such Defaulting Bank’s Commitment that was utilized by such LC Obligations) and LC Fees payable under Section 3.4 2.07(b) with respect to such Defaulting Bank’s Pro Rata Share of the LC Obligations Exposure shall be payable to the applicable LC Issuer until Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Bank’s Pro Rata Share LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Obligation Exposure is reallocated and/or cash collateralized and/or reallocatedcollateralized; and
(dvi) so long as any such Bank is a Defaulting Bank, no LC Issuer Issuing Bank shall be required to issue issue, amend, renew or Modify extend any Facility LC, Letter of Credit unless it is satisfied that the related exposure and the Defaulting Bank’s then outstanding LC Exposure will be 100% fully covered by the Revolving Credit Commitments of the nonNon-Defaulting Banks and/or cash collateral will be provided by the Company in accordance with clause (c) aboveSection 2.03(j), and participating interests in any such newly issued issued, amended, renewed or Modified Facility LC shall extended Letter of Credit will be allocated among nonthe Non-Defaulting Banks in a manner consistent with clause(c)(iSection 2.14(c)(i) above (and such Defaulting Banks Bank shall not participate therein).
(e) If (i) a Bankruptcy Event with respect to a Parent of any Bank shall occur following the date hereof and for so long as such event shall continue or (ii) any LC Issuer has a good faith belief that any Bank has defaulted in fulfilling its obligations under one or more other agreements in which such Bank commits to extend credit, such LC Issuer shall not be required to issue, amend or increase any Facility LC, unless such LC Issuer, as the case may be, shall have entered into arrangements with the Company or such Bank, satisfactory to such LC Issuer, as the case may be, to defease any risk to it in respect of such Bank hereunder.
(f) . In the event that the Administrative Agent, the Company, Company and each LC Issuer Issuing Bank each agrees agree that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the Banks’ Pro Rata Shares LC Exposures of the LC Obligations Banks shall be readjusted to reflect the inclusion of such Bank’s Revolving Credit Commitment and on such date such Bank shall purchase at par such of the Loans of the other Banks as the Administrative Agent shall determine may be necessary in order for such Bank to hold such Loans in accordance with its Pro Rata Share Proportional Share. Subject to Section 10.19, no reallocation hereunder shall constitute a waiver or release of the Aggregate Commitment; providedany claim of any party hereunder against a Defaulting Bank arising from that Bank having become a Defaulting Bank, that if the Company cash collateralized including any portion claim of a Non-Defaulting Bank as a result of such Non-Defaulting Bank’s Pro Rata Share of the LC Obligations pursuant to Section 4.7(c), increased exposure following such cash shall be returned to the Companyreallocation.
Appears in 1 contract
Defaulting Banks. (a) Notwithstanding any provision of this Agreement to the contrary, if any Bank becomes a one or more Revolving Banks become Defaulting BankBanks, then the following provisions shall apply for so long as any such Bank is a Defaulting Bank:
(ai) Commitment Fees no commitment fee shall cease to accrue on the unfunded portion unused amount of the any Revolving Commitment of such any Defaulting Bank pursuant to Section 2.5(a2.8(a);
(bii) the Commitment Revolving Commitments and Outstanding Credit Exposure Revolving Exposures of such each Defaulting Bank shall not be included disregarded in determining whether the Majority Required Revolving Banks, Required Banks or any other requisite Banks shall have taken or may take any action hereunder or under any other Loan Document (including any consent to any waiver, amendment or waiver other modification pursuant to Section 10.19.5); provided that any waiver, amendment, or other modification that, disregarding the effect of this clause (ii), requires the consent of each Bank directly affected thereby pursuant to clause (1)(a), (1)(b), (1)(c) or (1)(d) of Section 9.5 shall continue to require the consent of each Defaulting Bank directly affected thereby in accordance with the terms hereof; provided, thatfurther, except as otherwise provided in that any waiver, amendment or other modification of this Section 10.1, this 2.20(a)(ii) or clause (b1)(a), (1)(b), (1)(c) shall not apply to the vote or (1)(d) of Section 9.5 at any time that a Bank is a Defaulting Bank in the case of an amendment, waiver or other modification requiring shall require the consent of such Defaulting Bank or each if such Defaulting Bank would be directly adversely affected thereby;
(ciii) (1) if any Dollar LC Obligations exist Exposure, Multi-Currency LC Exposure or Swingline Exposure exists at the time a Revolving Bank becomes a Defaulting Bank (each Swingline Loan to which such Swingline Exposure is attributable being referred to as a “Reallocated Swingline Loan” and each Letter of Credit to which such LC Exposure is attributable being referred to as a “Reallocated Letter of Credit”), then:
(iA) so long as no Default subject to clause (B) below, the participation of each Non-Defaulting Bank of such Class in each Reallocated Swingline Loan (if applicable) or Event Reallocated Letter of Default Credit of such Class shall be continuing immediately before adjusted to be determined under Section 2.18(d) or 2.23 on the basis of such Revolving Bank’s Adjusted Applicable Percentage (and all references in Section 2.18 or 2.23 to “Applicable Percentage” shall be deemed to be references to “Adjusted Applicable Percentage”);
(B) notwithstanding the foregoing:
(1) if any Revolving Bank that becomes a Defaulting Bank shall be the Swingline Bank or an Issuing Bank or an Affiliate thereof, no adjustment shall be made pursuant to clause (A) above with respect to participations in any Swingline Loan made by the Swingline Bank or any Letter of Credit issued by such Issuing Bank, as the case may be;
(2) if all the Defaulting Banks’ Applicable Percentage of the LC Exposure of any Class attributable to the Reallocated Letters of Credit of such Class (the “Defaulting Bank LC Exposure”) and the Swingline Exposure attributable to the Reallocated Swingline Loans (the “Defaulting Bank Swingline Exposure”) collectively exceed the unused portion of the Revolving Commitments of the Non-Defaulting Banks of such Class as of the time the adjustments are to be made pursuant to clause (A) above (any such unused portion being referred to as the “Maximum Incremental Participation Amount”), then the incremental amount of participations in Letters of Credit of such Class and Swingline Loans acquired by the Non-Defaulting Banks under clause (A) above (the “Incremental Participations”) shall not exceed at any time the Maximum Incremental Participation Amount with respect to such Class;
(3) adjustments under Section 2.20(a)(iii)(A) and (B) above shall only be made to the extent that, after giving effect to such reallocationadjustments, all the Revolving Exposure of any Non-Defaulting Bank with respect to any Class shall not exceed its Revolving Commitment with respect to such Class; and
(4) no adjustment shall be made under Section 2.20(a)(iii)(A) or (B) above if, at the time such adjustment is made, an Event of Default has occurred and is continuing;
(C) if the Defaulting Bank LC Exposure with respect to any part Class and Defaulting Bank Swingline Exposure collectively exceed the Maximum Incremental Participation Amount with respect to such Class, then the applicable Borrower or applicable Additional Borrower shall, within five Domestic Business Days after receipt of written notice to that effect from the Administrative Agent, cash collateralize the Reallocated Letters of Credit of such Class and prepay the Reallocated Swingline Loans (in a manner and under documentation reasonably satisfactory to the Administrative Agent) in an aggregate amount equal to the excess, if any, of the Defaulting Bank LC Obligation Exposure of such Class and Defaulting Bank Swingline Exposure over the Maximum Incremental Participation Amount of such Class or, if agreed to by the applicable Issuing Bank and/or Swingline Bank, enter into other arrangements with respect to the Reallocated Letters of Credit of such Class or Reallocated Swingline Loans on terms mutually agreed between such Issuing Bank or the Swingline Bank, on the one hand, and the applicable Borrower or applicable Additional Borrower, on the other hand;
(D) if any Reallocated Letter of Credit shall have been cash collateralized by the applicable Borrower or applicable Additional Borrower pursuant to clause (C) above, then (x) the applicable Borrower or applicable Additional Borrower shall not be required to pay any letter of credit participation fees pursuant to Section 2.8(b) with respect to the portion of such Reallocated Letter of Credit that is so cash collateralized and (y) to the extent any letter of credit participation fees are not required to be paid by reason of clause (x) above, the reduction in the amount of such fees shall be reallocated among allocated to the nonDefaulting Banks;
(E) if an adjustment shall have been made pursuant to clause (A) above to the participations of the Non-Defaulting Banks in Reallocated Letters of Credit of any Class, then the letter of credit participation fees that would otherwise have been payable to the Revolving Banks that are Defaulting Banks pursuant to Section 2.8(b) with respect to the portion of such Reallocated Letters of Credit of such Class equal to the Incremental Participations therein shall instead accrue for the accounts of, and be payable to, the Revolving Banks of such Class that are Non-Defaulting Banks in accordance with their respective Pro Rata Share but only Adjusted Applicable Percentages;
(F) if the Defaulting Bank LC Exposure with respect to the extent that (x) any Class at any time shall exceed the sum of all non-Defaulting Banks’ Outstanding the Incremental Participations in respect of Letters of Credit Exposure does not exceed the total of all non-Defaulting Banks’ Commitments, (y) no Bank’s Outstanding Credit Exposure shall exceed its Commitment and (z) the conditions set forth in Section 11.2 are satisfied such Class at such time;
(ii) if time and the reallocation described in subclause (i) above cannot, or can only partially, be effected, the Company shall within one (1) Business Day following notice by the Agent, cash collateralize for the benefit portion of the relevant LC Issuer Reallocated Letters of Credit of such Defaulting Bank’s Pro Rata Share of the LC Obligations (after giving effect to any partial reallocation Class cash collateralized at such time pursuant to subclause clause (iC) above) in accordance with the procedures set forth in Section 9.2 for so long as such LC Obligation is outstanding;
(iii) if the Company cash collateralizes any portion of such Defaulting Bank’s Pro Rata Share of the LC Obligations pursuant this clause (c), the Company shall not be required to pay any fees to such Defaulting Bank pursuant to Section 3.4 with respect to such Defaulting Bank’s Pro Rata Share of the LC Obligations during the period such Defaulting Bank’s Pro Rata Share of the LC Obligations is cash collateralized;
(iv) if the non-Defaulting Banks’ Pro Rata Share of the LC Obligations is reallocated pursuant to this clause (c), then the fees payable to the Banks pursuant to Section 2.5(a) and Section 3.4 shall be adjusted in accordance with such non-Defaulting Banks’ Pro Rata Shares; or
(v) if any Defaulting Bank’s Pro Rata Share of the LC Obligations is neither reallocated nor cash collateralized pursuant to this clause (c), then, without prejudice to any rights or remedies of any LC Issuer Issuing Bank or any Non-Defaulting Bank hereunder, all letter of credit participation fees that otherwise would have been payable to the Revolving Banks of such Class that are Defaulting Bank (solely Banks under Section 2.8(b) with respect to the portion of the Defaulting Bank LC Exposure of such Class equal to such excess shall instead accrue for the account of, and be payable to, the applicable Issuing Bank that shall have issued the Reallocated Letters of Credit of such Class; and
(G) the Revolving Exposure of each Non-Defaulting Bank’s Commitment that was utilized Bank with respect to any Class shall be determined after giving effect to the Incremental Participations acquired by such LC Obligations) and LC Fees payable under Section 3.4 Revolving Bank with respect to such Defaulting Bank’s Pro Rata Share Class under the foregoing clauses of this clause (iii);
(1) in the event any (x) Letter of Credit shall be issued or amended to increase the amount thereof or (y) Swingline Loan shall be made, (A) the participations of the LC Obligations Non-Defaulting Banks of such Class therein shall be determined in the manner set forth in clause (iii)(A) above, as if such Letter of Credit of such Class or Swingline Loan shall have been a Reallocated Letter of Credit of such Class or a Reallocated Swingline Loan, as the case may be, and (B) letter of credit participation fees that would otherwise have been payable to the applicable LC Issuer until Revolving Banks of such Class that are Defaulting Bank’s Pro Rata Share Banks pursuant to Section 2.8(b) in respect of any such Letter of Credit shall be subject to Section 2.20(a)(iii)(E) above; provided, however, that, notwithstanding anything to the LC Obligation is cash collateralized and/or reallocated; and
(d) so long as any Bank is a Defaulting Bankcontrary set forth herein, no LC Issuer Issuing Bank of such Class or Swingline Bank shall be required to issue issue, extend, renew or Modify increase the amount of any Facility LCLetter of Credit of such Class or make any Swingline Loan, as applicable, unless it is satisfied that the related exposure Defaulting Banks’ Applicable Percentage of the LC Exposure with respect to such Class or Swingline Exposure, as applicable, attributable to such Letter of Credit or Swingline Loan, as applicable, will be 100% entirely covered by the Commitments participations therein of the nonNon-Defaulting Banks and/or cash collateral will be or other arrangements satisfactory to such Issuing Bank or Swingline Bank provided by the Company in accordance with clause applicable Borrower or applicable Additional Borrower (c) above, and participating interests in any such newly issued or Modified Facility LC shall be allocated among non-Defaulting Banks in a manner consistent with clause(c)(i) above (and Defaulting Banks shall not participate therein).
(e) If (i) a Bankruptcy Event with respect to a Parent of any Bank shall occur following the date hereof and for so long as such event shall continue or (ii) any LC Issuer has a good faith belief that any Bank has defaulted in fulfilling its obligations under one or more other agreements in which such Bank commits to extend credit, such LC Issuer shall not be required to issue, amend or increase any Facility LC, unless such LC Issuer, as the case may be, shall have entered into arrangements with the Company or such Bank, documentation satisfactory to such LC IssuerIssuing Bank or Swingline Bank, as applicable); and
(2) any amount payable to or for the case account of any Defaulting Bank in its capacity as a Bank hereunder (whether on account of principal, interest, fees or otherwise, and including any amounts payable to such Defaulting Bank pursuant to Sections 2.10 and 2.11, but excluding any amounts payable to such Defaulting Bank pursuant to Sections 2.13, 2.15, 2.17, 8.3 and 9.3) shall, in lieu of being distributed to such Defaulting Bank, be retained by the Administrative Agent in a segregated account and, subject to any applicable requirements of law, (A) be applied, at such time or times as may bebe determined by the Administrative Agent, (1) first, to defease the payment of any risk amounts owing by such Defaulting Bank to it the Administrative Agent hereunder, (2) second to the payment on a pro rata basis of any amounts owing by such Defaulting Bank to each Issuing Bank and Swingline Bank in respect of such Defaulting Bank’s participations in Letters of Credit and Swingline Loans (and to the extent any such amounts shall have been paid by Non-Defaulting Banks as a result of adjustments pursuant to clause (iii) above, to reimburse such Non-Defaulting Banks for such amounts), (3) third, to cash collateralize participation obligations of such Defaulting Bank in respect of outstanding Letters of Credit (with the concurrent release of an equivalent amount any cash collateral or other collateral security, if any, provided by the applicable Borrower pursuant to this Section) and prepay Swingline Loans on a pro rata basis and (4) fourth, to the funding of such Defaulting Bank’s Applicable Percentage of any Revolving Borrowing in respect of which such Defaulting Bank shall have failed to fund such share as required hereunder, (B) to the extent not applied as aforesaid, be held, if so determined by the Administrative Agent, as cash collateral for funding obligations of such Defaulting Bank in respect of future Loans hereunder, (C) to the extent not applied or held as aforesaid, be applied, pro rata, to the payment of any amounts owing to any Borrower or the Non-Defaulting Banks as a result of any judgment of a court of competent jurisdiction obtained by any Borrower or any Non-Defaulting Bank against such Defaulting Bank as a result of such Defaulting Bank’s breach of its obligations hereunder and (D) to the extent not applied or held as aforesaid, be distributed to such Defaulting Bank or as otherwise directed by a court of competent jurisdiction.
(fb) In the event that the Administrative Agent, the CompanyIssuing Banks of such Class, the Swingline Bank and each LC Issuer each agrees the Borrowers shall have agreed that a Revolving Bank that is a Defaulting Bank has adequately remedied all matters that caused such Revolving Bank to be become a Defaulting Bank, then (i) such Revolving Bank shall cease to be a Defaulting Bank for all purposes hereof, (ii) the Banks’ Pro Rata Shares obligations of the LC Obligations Revolving Banks to purchase participations in Letters of Credit under Section 2.18(d) and Swingline Loans under Section 2.23 shall be readjusted to reflect be determined on the inclusion basis of such Bank’s Commitment Revolving Banks’ Applicable Percentages and on (iii) such date such Revolving Bank shall purchase at par such of the Revolving Loans of the other Revolving Banks as the Administrative Agent shall determine may to be necessary in order for such Bank the Revolving Loans to hold such Loans be held by the Revolving Banks in accordance with their Applicable Percentages.
(c) No Revolving Commitment of any Revolving Bank shall be increased or otherwise affected and, except as otherwise expressly provided in this Section, performance by any Borrower or any Additional Borrower of its Pro Rata Share obligations hereunder and under the other Loan Documents shall not be excused or otherwise modified as a result of the Aggregate Commitment; providedoperation of this Section. The rights and remedies against a Defaulting Bank under this Section are in addition to other rights and remedies that any Borrower, that if any Additional Borrower, the Company cash collateralized Administrative Agent, the Issuing Banks, the Swingline Bank or any portion of Non-Defaulting Bank may have against such Defaulting Bank’s Pro Rata Share Bank (and, for the avoidance of doubt, each Non-Defaulting Bank shall have a claim against any Defaulting Bank for any losses it may suffer as a result of the LC Obligations pursuant to Section 4.7(coperation of this Section), such cash shall be returned to the Company.
Appears in 1 contract
Sources: Credit Agreement (Allegion PLC)
Defaulting Banks. Notwithstanding any provision of this Agreement or any other Loan Document to the contrary, if any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Commitment Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Bank pursuant to Section 2.5(a3.2(a);
(b) the Commitment and Outstanding Extensions of Credit Exposure of such Defaulting Bank shall not be included in determining whether all Banks (or each Bank) or the Majority Banks have taken or may take any action hereunder (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 10.1); provided, that, except as otherwise provided in Section 10.1, that this clause (b) shall not apply to the vote of a Defaulting Bank in the case of an amendment, waiver or other modification requiring the consent of such Bank or each Bank directly affected thereby if such Bank is an affected Bank; provided, further, that there shall not be any amendment, modification or waiver (i) of any provision of Section 4.2 or Section 10.1 in a manner that would alter the pro rata sharing of payments required thereby, or (ii) causing the reduction of the percentage specified in the definition of Majority Banks, or (iii) causing the consent to the assignment or transfer by the Borrower of any of its respective rights and obligations under this Agreement and the other Loan Documents, in each case without the consent of such Bank;
(c) if any LC Swingline Exposure or L/C Obligations exist at the time a such Bank becomes a Defaulting Bank then:;
(i) so long as no Default or Event of Default shall be continuing immediately before or after giving effect to such reallocation, all or any part of the Swingline Exposure and L/C Exposure of such LC Obligation Defaulting Bank shall be reallocated (effective as of the date such Bank becomes a Defaulting Bank) among the non-Defaulting Banks in accordance with their respective Pro Rata Share Revolving Percentages, but only to the extent that (x) the sum of all non-Defaulting Banks’ Outstanding Extensions of Credit plus such Defaulting Bank’s Swingline Exposure and L/C Exposure does not exceed the total of all non-Defaulting Banks’ Commitments, (y) no Bank’s Outstanding Credit Exposure shall exceed its Commitment and (z) the conditions set forth in Section 11.2 are satisfied at such time;
(ii) if the reallocation described in subclause clause (i) above cannot, or can only partially, be effected, the Company shall Borrower shall, within one (1) two Business Day Days following the Borrower’s receipt of written notice by the Administrative Agent, (x) first, prepay such Defaulting Bank’s Swingline Exposure and (y) second, cash collateralize for the benefit of the relevant LC Issuer applicable Issuing Banks only the Borrower’s obligations corresponding to such Defaulting Bank’s Pro Rata Share of the LC Obligations L/C Exposure (after giving effect to any partial reallocation pursuant to subclause clause (i) above) in accordance with the procedures set forth in Section 9.2 8.2 for so long as such LC Obligation L/C Exposure is outstanding;
(iii) if the Company Borrower cash collateralizes any portion of such Defaulting Bank’s Pro Rata Share of the LC Obligations L/C Exposure pursuant this to clause (c)ii) above, the Company Borrower shall not be required to pay any fees to such Defaulting Bank pursuant to Section 3.4 2.5(c) with respect to such Defaulting Bank’s Pro Rata Share of the LC Obligations L/C Exposure during the period such Defaulting Bank’s Pro Rata Share of the LC Obligations L/C Exposure is cash collateralized;
(iv) if the non-all or any portion of such Defaulting Banks’ Pro Rata Share of the LC Obligations Bank’s L/C Exposure is reallocated pursuant to this clause (c)i) above, then the fees payable to the Banks pursuant to Section 2.5(a) and Section 3.4 shall be adjusted in accordance with such non-Defaulting Banks’ Pro Rata Shares; or
(v) if any Defaulting Bank’s Pro Rata Share Letter of the LC Obligations is neither reallocated nor cash collateralized pursuant to this clause (c), then, without prejudice to any rights or remedies of any LC Issuer or any Bank hereunder, all Credit participation fees that otherwise would have been payable to such Defaulting Bank (solely with respect to the portion of such Defaulting Bank’s Commitment that was utilized by such LC Obligations) and LC Fees payable under Section 3.4 with respect to such Defaulting Bank’s Pro Rata Share of the LC Obligations shall be payable to the applicable LC Issuer until such Defaulting Bank’s Pro Rata Share of the LC Obligation is cash collateralized and/or reallocated; and
(d) so long as any Bank is a Defaulting Bank, no LC Issuer shall be required to issue or Modify any Facility LC, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Banks and/or cash collateral will be provided by the Company in accordance with clause (c) above, and participating interests in any such newly issued or Modified Facility LC shall be allocated among non-Defaulting Banks in a manner consistent with clause(c)(i) above (and Defaulting Banks shall not participate therein).
(e) If (i) a Bankruptcy Event with respect to a Parent of any Bank shall occur following the date hereof and for so long as such event shall continue or (ii) any LC Issuer has a good faith belief that any Bank has defaulted in fulfilling its obligations under one or more other agreements in which such Bank commits to extend credit, such LC Issuer shall not be required to issue, amend or increase any Facility LC, unless such LC Issuer, as the case may be, shall have entered into arrangements with the Company or such Bank, satisfactory to such LC Issuer, as the case may be, to defease any risk to it in respect of such Bank hereunder.
(f) In the event that the Agent, the Company, and each LC Issuer each agrees that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the Banks’ Pro Rata Shares of the LC Obligations shall be readjusted to reflect the inclusion of such Bank’s Commitment and on such date such Bank shall purchase at par such of the Loans of the other Banks as the Agent shall determine may be necessary in order for such Bank to hold such Loans in accordance with its Pro Rata Share of the Aggregate Commitment; provided, that if the Company cash collateralized any portion of such Defaulting Bank’s Pro Rata Share of the LC Obligations pursuant to Section 4.7(c), such cash shall be returned to the Company.to
Appears in 1 contract
Sources: Credit Agreement (Centerpoint Energy Houston Electric LLC)
Defaulting Banks. (a) Notwithstanding any provision of this Agreement to the contrary, if any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(ai) Commitment Fees facility fees shall cease to accrue accrue, or to be payable by the Borrower, on the unfunded portion of the Commitment of such Defaulting Bank pursuant to Section 2.5(a)2.09(a) for the account of such Defaulting Bank or otherwise;
(bii) Letter of Credit Fees shall cease to accrue, or to be payable by the Borrower, on the Pro Rata Share of a Letter of Credit of such Defaulting Bank pursuant to Section 2.09(c) for the account of such Defaulting Bank or otherwise;
(iii) the Commitment and Outstanding or Credit Exposure of such Defaulting Bank shall not be included in determining whether all Banks or the Majority Required Banks have taken or may take any action hereunder (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 10.19.05); provided, thathowever, except as otherwise provided in Section 10.1, that this clause (biii) shall not (subject to Section 9.05) apply to the vote of a Defaulting Bank in the case of an amendment, waiver or other modification specifically requiring the consent of such Bank or each Bank directly affected thereby;thereby (and in circumstances where the consent of “all Banks” is required, such Defaulting Bank’s vote shall not be included except (A) such Defaulting Bank’s Commitment may not be increased or extended without its consent and (B) the principal amount of, or interest or fees payable on, Loans or L/C Borrowings may not be reduced or excused or the scheduled date of payment may not be postponed as to such Defaulting Bank without such Defaulting Bank’s consent); and
(civ) if any LC Obligations exist L/C Advance exists at the time a such Bank becomes a Defaulting Bank then:
(iA) so long as provided that no Default or Event of Default shall be continuing immediately before or after giving effect to such reallocationexists, all or any part of the L/C Advance of such LC Obligation Defaulting Bank shall be reallocated among the non-Defaulting Banks in accordance with their respective Pro Rata Share Shares but only to the extent that (x) the sum of the aggregate Outstanding Amount of the Revolving Loans of all non-Defaulting Banks’ Outstanding Credit Exposure plus such Defaulting Bank’s L/C Advance does not exceed the total of all non-Defaulting Banks’ Commitments, (y) no Bank’s Outstanding Credit Exposure shall exceed its Commitment and (z) the conditions set forth in Section 11.2 are satisfied at such time;
(iiB) if the reallocation described in subclause clause (iA) above cannot, or can only partially, be effected, the Company Borrower shall within one (1) Domestic Business Day following notice by the Agent, cash collateralize Administrative Agent Cash Collateralize for the benefit of the relevant LC Issuer Issuing Bank only the Borrower’s obligations corresponding to such Defaulting Bank’s Pro Rata Share of the LC Obligations L/C Advance (after giving effect to any partial reallocation pursuant to subclause clause (i) above) in accordance with the procedures set forth in Section 9.2 2.20(e)(i) for so long as such LC Obligation Advance is outstanding;
(iiiC) if the Company cash collateralizes Borrower Cash Collateralizes any portion of such Defaulting Bank’s Pro Rata Share of the LC Obligations L/C Advance pursuant this to clause (c)B) above, the Company Borrower shall not be required to pay any fees to such Defaulting Bank pursuant to Section 3.4 2.09(c) with respect to such Defaulting Bank’s Pro Rata Share of the LC Obligations L/C Advance during the period such Defaulting Bank’s Pro Rata Share of the LC Obligations L/C Advance is cash collateralizedCash Collateralized;
(ivD) if the L/C Advances of the non-Defaulting Banks’ Pro Rata Share of the LC Obligations is Banks are reallocated pursuant to this clause (c)A) above, then the fees payable to the Banks pursuant to Section 2.5(a2.09(a) and Section 3.4 2.09(c) shall be adjusted in accordance with such non-Defaulting Banks’ Pro Rata Shares; orand
(vE) if all or any portion of such Defaulting Bank’s Pro Rata Share of the LC Obligations L/C Advance is neither reallocated nor cash collateralized Cash Collateralized pursuant to this clause (c)A) or (B) above, then, without prejudice to any rights or remedies of any LC Issuer the Issuing Bank or any other Bank hereunder, all facility fees that otherwise would have been payable to such Defaulting Bank (solely with respect to the portion of such Defaulting Bank’s Commitment that was utilized by such LC ObligationsL/C Advance) and LC Fees letter of credit fees payable under Section 3.4 2.09(c) with respect to such Defaulting Bank’s Pro Rata Share of the LC Obligations L/C Advance shall be payable to the applicable LC Issuer Issuing Bank until and to the extent that such Defaulting Bank’s Pro Rata Share of the LC Obligation L/C Advance is cash collateralized reallocated and/or reallocatedCash Collateralized; and
(db) so So long as any Bank is a Defaulting Bank, no LC Issuer the Issuing Bank shall not be required to issue issue, amend or Modify increase any Facility LCLetter of Credit, unless it is satisfied that the Defaulting Bank's related exposure and its then outstanding L/C Advance will be 100% covered in accordance with the terms of this Agreement by the Commitments of the non-Defaulting Banks and/or cash collateral will be provided by the Company Borrower in accordance with clause (c) aboveSection 2.19(a)(iv), and participating interests in any such newly issued or Modified Facility LC increased Letter of Credit shall be allocated among non-Defaulting Banks in a manner consistent with clause(c)(iSection 2.19(a)(iv)(A) above (and such Defaulting Banks Bank shall not participate therein).
(e) If (i) a Bankruptcy Event with respect to a Parent of any Bank shall occur following the date hereof and for so long as such event shall continue or (ii) any LC Issuer has a good faith belief that any Bank has defaulted in fulfilling its obligations under one or more other agreements in which such Bank commits to extend credit, such LC Issuer shall not be required to issue, amend or increase any Facility LC, unless such LC Issuer, as the case may be, shall have entered into arrangements with the Company or such Bank, satisfactory to such LC Issuer, as the case may be, to defease any risk to it in respect of such Bank hereunder.
(f) . In the event that the Administrative Agent, the CompanyBorrower, and each LC Issuer the Issuing Bank each agrees that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the Banks’ Pro Rata Shares L/C Advances of the LC Obligations Banks shall be readjusted to reflect the inclusion of such Bank’s Commitment and on such date such Bank shall purchase at par such of the Loans of the other Banks as the Administrative Agent shall determine may be necessary in order for such Bank to hold such Loans in accordance with its Pro Rata Share Share.
(c) At the Borrower’s option, the Borrower may elect to terminate the Commitment of any Defaulting Bank upon notice to such Defaulting Bank and the Aggregate CommitmentAdministrative Agent (irrespective of whether such Defaulting Bank holds any outstanding Loans) and such notice shall be effective upon receipt by both the Defaulting Bank and the Administrative Agent; providedprovided that, that for the avoidance of doubt, if such Defaulting Bank holds any Loans, and such Loans are not assigned pursuant to Section 2.18 or otherwise, then such Defaulting Bank shall continue to hold such Loans until such time as such Loans are repaid by the Company cash collateralized Borrower or assigned pursuant to this Agreement. Upon termination of a Bank’s Commitment under this Section 2.19, the Borrower shall (x) to the extent applicable after giving effect to Section 2.19(a)(iv) and any portion of Cash Collateral provided by the Defaulting Bank, Cash Collateralize such Defaulting Bank’s Pro Rata Share of the LC Obligations pursuant aggregate undrawn amount of all outstanding Letters of Credit, (y) subject to Section 4.7(c2.19(a), pay or cause to be paid all accrued facility fees or Letter of Credit Fees payable to such cash Bank and all other amounts due and payable to such Bank hereunder and (z) if such Bank is an Issuing Bank, the Borrower shall be returned pay to the CompanyAdministrative Agent for deposit an amount equal to the available amount of all Letters of Credit issued by such Issuing Bank, and upon such payments, the obligations of such Bank hereunder with respect to such unused Commitment which have been terminated shall, by the provisions hereof, be released and discharged.
Appears in 1 contract
Sources: Revolving Credit Agreement (National Rural Utilities Cooperative Finance Corp /Dc/)
Defaulting Banks. Notwithstanding any provision of this Agreement to the contrary, if any Bank becomes a Defaulting Bank, then the Administrative Agent shall deliver written notice to such effect, upon the Administrative Agent’s obtaining knowledge of such event, to the Company and such Defaulting Bank, and the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Commitment Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Bank pursuant to Section 2.5(a);[Reserved].
(b) the The Commitment and Outstanding Credit Exposure outstanding Loans of such Defaulting Bank shall not be included in determining whether all Banks or the Majority Banks have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.19.1); provided, thatprovided that any waiver, except as otherwise provided in Section 10.1, this clause (b) shall not apply to the vote of a Defaulting Bank in the case of an amendment, waiver amendment or other modification requiring the consent of all Banks or each affected Bank which would increase or extend the term of the Commitment or the Maturity Date of Loans of such Defaulting Bank or each which adversely affects such Defaulting Bank directly in a disproportionate manner compared to other affected thereby;Banks shall require the consent of such Defaulting Bank.
(c) if any LC Obligations exist at the time a Bank becomes a Any amount payable to such Defaulting Bank then:
hereunder (i) so long as no Default whether on account of principal, interest, fees or Event of Default shall otherwise and including any amount that would otherwise be continuing immediately before or after giving effect to such reallocation, all or any part of such LC Obligation shall be reallocated among the non-Defaulting Banks in accordance with their respective Pro Rata Share but only to the extent that (x) the sum of all non-Defaulting Banks’ Outstanding Credit Exposure does not exceed the total of all non-Defaulting Banks’ Commitments, (y) no Bank’s Outstanding Credit Exposure shall exceed its Commitment and (z) the conditions set forth in Section 11.2 are satisfied at such time;
(ii) if the reallocation described in subclause (i) above cannot, or can only partially, be effected, the Company shall within one (1) Business Day following notice by the Agent, cash collateralize for the benefit of the relevant LC Issuer such Defaulting Bank’s Pro Rata Share of the LC Obligations (after giving effect to any partial reallocation pursuant to subclause (i) above) in accordance with the procedures set forth in Section 9.2 for so long as such LC Obligation is outstanding;
(iii) if the Company cash collateralizes any portion of such Defaulting Bank’s Pro Rata Share of the LC Obligations pursuant this clause (c), the Company shall not be required to pay any fees payable to such Defaulting Bank pursuant to Section 3.4 with respect 2.16, but excluding amounts payable pursuant to Section 2.23) shall, in lieu of being distributed to such Defaulting Bank’s Pro Rata Share , subject to any applicable requirements of law, be applied at such time or times as may be determined by the LC Obligations during Administrative Agent (i) first, to the period payment of any amounts owing by such Defaulting Bank to the Administrative Agent hereunder, (ii) second, to the funding of any Loan in respect of which such Defaulting Bank has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (iii) third, to the payment of any amounts owing to the Banks as a result of any judgment of a court of competent jurisdiction obtained by any Bank against such Defaulting Bank as a result of such Defaulting Bank’s Pro Rata Share breach of the LC Obligations is cash collateralized;
its obligations under this Agreement, (iv) if fourth, to the non-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 Banks’ Pro Rata Share Bank as a result of the LC Obligations is reallocated pursuant such Defaulting Bank’s breach of its obligations under this Agreement, and (v) fifth, to such Defaulting Bank or as otherwise directed by a court of competent jurisdiction, provided, with respect to this clause (c), then that if such payment is (x) a prepayment of the fees payable to principal amount of any Loans and (y) made at a time when the Banks pursuant to conditions set forth in clauses (c)-(e) of Section 2.5(a) and Section 3.4 4.1 are satisfied, such payment shall be adjusted in accordance with such non-Defaulting Banks’ Pro Rata Shares; or
(v) if any Defaulting Bank’s Pro Rata Share of applied solely to prepay the LC Obligations is neither reallocated nor cash collateralized pursuant to this clause (c)Loans of, then, without prejudice to any rights or remedies of any LC Issuer or any Bank hereunderand reimbursement obligations owed to, all fees that otherwise would have been payable to such Defaulting Bank (solely with respect to the portion of such Defaulting Bank’s Commitment that was utilized by such LC Obligations) and LC Fees payable under Section 3.4 with respect to such Defaulting Bank’s Pro Rata Share of the LC Obligations shall be payable to the applicable LC Issuer until such Defaulting Bank’s Pro Rata Share of the LC Obligation is cash collateralized and/or reallocated; and
(d) so long as any Bank is a Defaulting Bank, no LC Issuer shall be required to issue or Modify any Facility LC, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Banks and/or cash collateral will be provided by pro rata prior to being applied to the Company in accordance with clause (c) above, and participating interests in any such newly issued or Modified Facility LC shall be allocated among non-Defaulting Banks in a manner consistent with clause(c)(i) above (and Defaulting Banks shall not participate therein).
(e) If (i) a Bankruptcy Event with respect to a Parent prepayment of any Bank shall occur following the date hereof and for so long as such event shall continue Loans, or (ii) reimbursement obligations owed to, any LC Issuer has a good faith belief that any Bank has defaulted in fulfilling its obligations under one or more other agreements in which such Bank commits to extend credit, such LC Issuer shall not be required to issue, amend or increase any Facility LC, unless such LC Issuer, as the case may be, shall have entered into arrangements with the Company or such Bank, satisfactory to such LC Issuer, as the case may be, to defease any risk to it in respect of such Bank hereunder.
(f) In the event that the Agent, the Company, and each LC Issuer each agrees that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the Banks’ Pro Rata Shares of the LC Obligations shall be readjusted to reflect the inclusion of such Bank’s Commitment and on such date such Bank shall purchase at par such of the Loans of the other Banks as the Agent shall determine may be necessary in order for such Bank to hold such Loans in accordance with its Pro Rata Share of the Aggregate Commitment; provided, that if the Company cash collateralized any portion of such Defaulting Bank’s Pro Rata Share of the LC Obligations pursuant to Section 4.7(c), such cash shall be returned to the Company.
Appears in 1 contract
Defaulting Banks. Notwithstanding any provision of this Agreement to the contrary, if If any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Commitment Fees shall cease to accrue on the unfunded portion of neither the Commitment of such Defaulting Bank pursuant to Section 2.5(a);
(b) nor the Commitment and Outstanding Credit Exposure Loans of such Defaulting Bank shall not be included in determining whether all Banks or the Majority Required Banks have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.19.05); providedprovided that any waiver, that, except as otherwise provided in Section 10.1, this clause (b) shall not apply to the vote of a Defaulting Bank in the case of an amendment, waiver amendment or other modification requiring the consent of all Banks which affects such Defaulting Bank differently than other affected Banks shall require the consent of such Defaulting Bank; provided, further that no waiver, amendment or each modification of the type described in clause (i), (ii) or (iii) of Section 9.05 may be made without the written consent of any Defaulting Bank directly affected thereby;
(c) if any LC Obligations exist at the time a Bank becomes a Defaulting Bank then:
(i) so long as no Default or Event of Default shall be continuing immediately before or after giving effect to such reallocation, all or any part of such LC Obligation shall be reallocated among the non-Defaulting Banks in accordance with their respective Pro Rata Share but only to the extent that (xb) the sum of all non-Defaulting Banks’ Outstanding Credit Exposure does not exceed the total of all non-Defaulting Banks’ CommitmentsCompany may, (y) no Bank’s Outstanding Credit Exposure shall exceed at its Commitment and (z) the conditions set forth in Section 11.2 are satisfied at such time;
(ii) if the reallocation described in subclause (i) above cannotsole expense, or can only partially, be effected, the Company shall within one (1) Business Day following upon notice by the Agent, cash collateralize for the benefit of the relevant LC Issuer such Defaulting Bank’s Pro Rata Share of the LC Obligations (after giving effect to any partial reallocation pursuant to subclause (i) above) in accordance with the procedures set forth in Section 9.2 for so long as such LC Obligation is outstanding;
(iii) if the Company cash collateralizes any portion of such Defaulting Bank’s Pro Rata Share of the LC Obligations pursuant this clause (c), the Company shall not be required to pay any fees to such Defaulting Bank and the Administrative Agent, require such Defaulting Bank to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in Section 9.06, with the Company or the replacement Bank paying the processing and recording fee), all of its interests, rights and obligations under this Agreement to an Assignee that shall assume such obligations (which Assignee may be another Bank, if a Bank accepts such assignment); provided that (i) the Company shall have received the prior written consent of the Administrative Agent to such assignment (to the extent such consent would otherwise be required pursuant to Section 3.4 with respect 9.06), which consent shall not unreasonably be withheld, delayed or conditioned, and (ii) such Defaulting Bank shall have received payment of an amount equal to the outstanding principal of its Loans, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the Assignee (to the extent of such outstanding principal and accrued interest and fees) or the Company;
(c) notwithstanding any contrary provision in this Agreement, the Company may (i) prepay, without penalty or premium, the Loans made by a Defaulting Bank and (ii) terminate the unused amount of the Commitment of a Defaulting Bank, in each case, (x) without pro rata prepayment of Loans of other Banks or pro rata termination of Commitments of other Banks and (y) upon not less than two Domestic Business Days’ prior notice to the Administrative Agent (which will promptly notify the Banks thereof), it being understood that such prepayment and termination will not be deemed to be a waiver or release of any claim the Company or the Administrative Agent may have against such Defaulting Bank’s Pro Rata Share of the LC Obligations during the period such Defaulting Bank’s Pro Rata Share of the LC Obligations is cash collateralized;
(iv) if the non-Defaulting Banks’ Pro Rata Share of the LC Obligations is reallocated pursuant to this clause (c), then the fees payable to the Banks pursuant to Section 2.5(a) and Section 3.4 shall be adjusted in accordance with such non-Defaulting Banks’ Pro Rata Shares; or
(v) if any Defaulting Bank’s Pro Rata Share of the LC Obligations is neither reallocated nor cash collateralized pursuant to this clause (c), then, without prejudice to any rights or remedies of any LC Issuer or any Bank hereunder, all fees that otherwise would have been payable to such Defaulting Bank (solely with respect to the portion of such Defaulting Bank’s Commitment that was utilized by such LC Obligations) and LC Fees payable under Section 3.4 with respect to such Defaulting Bank’s Pro Rata Share of the LC Obligations shall be payable to the applicable LC Issuer until such Defaulting Bank’s Pro Rata Share of the LC Obligation is cash collateralized and/or reallocated; and
(d) so long as nothing in this Section shall affect any Bank is a rights or remedies the Company may have against any Defaulting Bank, no LC Issuer shall be required to issue or Modify any Facility LC, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Banks and/or cash collateral will be provided by the Company in accordance with clause (c) above, and participating interests in any such newly issued or Modified Facility LC shall be allocated among non-Defaulting Banks in a manner consistent with clause(c)(i) above (and Defaulting Banks shall not participate therein).
(e) If (i) a Bankruptcy Event with respect to a Parent of any Bank shall occur following the date hereof and for so long as such event shall continue or (ii) any LC Issuer has a good faith belief that any Bank has defaulted in fulfilling its obligations under one or more other agreements in which such Bank commits to extend credit, such LC Issuer shall not be required to issue, amend or increase any Facility LC, unless such LC Issuer, as the case may be, shall have entered into arrangements with the Company or such Bank, satisfactory to such LC Issuer, as the case may be, to defease any risk to it in respect of such Bank hereunder.
(f) . In the event and on the date that the Agent, Administrative Agent and the Company, and Company each LC Issuer each agrees agree that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the Banks’ Pro Rata Shares of the LC Obligations shall be readjusted to reflect the inclusion of such Bank’s Commitment and on such date such Bank shall purchase at par such of the Loans of the other Banks as the Administrative Agent shall determine may be necessary in order for such Bank to hold such Loans in accordance with its Pro Rata Share of the Aggregate Commitment; provided, that if the Company cash collateralized any portion of Commitment and such Bank shall no longer be a Defaulting Bank’s Pro Rata Share of the LC Obligations . Each party hereto agrees that (a) an assignment required pursuant to Section 4.7(c)2.16(b) may be effected pursuant to an Assignment and Assumption executed by the Company, the Administrative Agent and the assignee and (b) the Bank required to make such cash assignment need not be a party thereto in order for such assignment to be effective and shall be returned deemed to have consented to and be bound by the Companyterms thereof; provided that, following the effectiveness of any such assignment, the other parties to such assignment agree to execute and deliver such documents necessary to evidence such assignment as reasonably requested by the applicable Bank, provided, further that any such documents shall be without recourse to or warranty by the parties thereto.
Appears in 1 contract
Sources: 364 Day Term Loan Credit Agreement (Rockwell Automation, Inc)
Defaulting Banks. Notwithstanding any provision of this Agreement to the contrary, if any Bank becomes a Defaulting Bank, then the Paying Agent shall deliver written notice to such effect, upon the Paying Agent’s obtaining knowledge of such event, to the Company and such Defaulting Bank, and the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Commitment Fees shall cease to accrue on the unfunded portion of with respect to the Commitment of such Defaulting Bank pursuant to Section 2.5(a);2.4.
(b) the The Commitment and Outstanding Revolving Credit Exposure of such Defaulting Bank shall not be included in determining whether all Banks or the Majority Banks have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.19.1); provided, thatprovided that any waiver, except as otherwise provided in Section 10.1, this clause (b) shall not apply to the vote of a Defaulting Bank in the case of an amendment, waiver amendment or other modification requiring the consent of all Banks or each affected Bank which would increase or extend the term of the Commitment of such Defaulting Bank or each which affects such Defaulting Bank directly differently than other affected thereby;Banks shall require the consent of such Defaulting Bank.
(c) if If any LC L/C Obligations exist at the time a Bank becomes a Defaulting Bank Bank, then:
(i) so long as no Default or Event of Default shall be continuing immediately before or after giving effect to such reallocation, all or any part of such LC Obligation L/C Obligations shall be reallocated among the non-Defaulting Banks ratably in accordance with their respective Pro Rata Share Commitments but only to the extent that (x) the sum of all non-Defaulting Banks’ Outstanding Revolving Credit Exposure Exposures does not then exceed the total of all non-Defaulting Banks’ Commitments, Commitments and (y) no Bank’s Outstanding Credit Exposure shall exceed its Commitment and (z) the conditions set forth in Section 11.2 4.3 are satisfied at such time;
(ii) if the reallocation described in subclause clause (i) above cannot, or can only partially, be effected, the Company shall within one (1) Business Day following notice by the Agent, Paying Agent cash collateralize for the benefit of the relevant LC Issuer percentage such Defaulting Bank’s Pro Rata Share Commitment represents of the LC Total Commitment of the L/C Obligations (after giving effect to any partial reallocation pursuant to subclause clause (i) above) in accordance with the procedures set forth in Section 9.2 7.2 for so long as such LC Obligation is L/C Obligations are outstanding;
(iii) if the Company cash collateralizes any portion of such Defaulting Bank’s Pro Rata Share of the LC L/C Obligations pursuant to this clause (cSection 2.22(c), the Company shall not be required to pay any fees to such Defaulting Bank pursuant to Section 3.4 3.3 with respect to such Defaulting Bank’s Pro Rata Share portion of the LC L/C Obligations during the period of such Defaulting Bank’s Pro Rata Share of the LC Obligations is cash collateralizedcollateralization;
(iv) if the L/C Obligations of the non-Defaulting Banks’ Pro Rata Share of the LC Obligations is Banks are reallocated pursuant to this clause (cSection 2.22(c), then the fees payable to the Banks pursuant to Section 2.5(a) and Section 3.4 3.3 shall be adjusted ratably in accordance with such non-Defaulting Banks’ Pro Rata Sharestheir respective Commitments; orand
(v) if any Defaulting Bank’s Pro Rata Share of the LC L/C Obligations is are neither reallocated nor cash collateralized nor reallocated pursuant to this clause (cSection 2.22(c), then, without prejudice to any rights or remedies of any LC Issuer the applicable Issuing Bank or any Bank hereunder, all fees Commitment Fees that otherwise would have been payable to such Defaulting Bank (solely with respect to the portion of such Defaulting Bank’s Commitment that was utilized by such LC L/C Obligations) and LC Fees letter of credit fees payable under Section 3.4 3.3 with respect to such Defaulting Bank’s Pro Rata Share of the LC L/C Obligations shall be payable to the applicable LC Issuer Issuing Bank until such Defaulting Bank’s Pro Rata Share of the LC Obligation is L/C Obligations are cash collateralized and/or reallocated; and.
(d) so So long as any Bank is a Defaulting Bank, no LC Issuer the Issuing Bank shall not be required to issue issue, amend or Modify increase any Facility LCLetter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Banks and/or cash collateral will be provided by the Company in accordance with clause (c) aboveSection 2.22(c), and participating interests in any such newly issued or Modified Facility LC increased Letter of Credit shall be allocated among non-Defaulting Banks in a manner consistent with clause(c)(iSection 2.22(c)(i) above (and Defaulting Banks shall not participate therein).
(e) If Any amount payable to such Defaulting Bank hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Bank pursuant to Section 2.16, but excluding amounts payable pursuant to Section 2.23) shall, in lieu of being distributed to such Defaulting Bank, subject to any applicable requirements of law, be applied at such time or times as may be determined by the Paying Agent (i) first, to the payment of any amounts owing by such Defaulting Bank to the Paying Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Bank to the Issuing Bank hereunder, (iii) third, if so determined by the Paying Agent or requested by an Issuing Bank, held in such account as cash collateral for future funding obligations of the Defaulting Bank in respect of any existing or future participating interest in any Letter of Credit, (iv) fourth, to the funding of any Loan in respect of which such Defaulting Bank has failed to fund its portion thereof as required by this Agreement, as determined by the Paying Agent, (v) fifth, if so determined by the Paying Agent and the Company, held in such account as cash collateral for future funding obligations of the Defaulting Bank in respect of any Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Banks or an Issuing Bank as a Bankruptcy Event result of any judgment of a court of competent jurisdiction obtained by any Bank or such Issuing Bank against such Defaulting Bank as a result of such Defaulting Bank’s breach of its obligations under this Agreement, (vii) seventh, 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 Bank as a result of such Defaulting Bank’s breach of its obligations under this Agreement, and (viii) eighth, to such Defaulting Bank or as otherwise directed by a court of competent jurisdiction, provided, with respect to this clause (viii), that if such payment is (x) a Parent prepayment of the principal amount of any Bank shall occur following the date hereof and for so long as such event shall continue Loans or (ii) any LC Issuer has a good faith belief that any Bank has defaulted in fulfilling its reimbursement obligations under one or more other agreements in which such Bank commits to extend credit, such LC Issuer shall not be required to issue, amend or increase any Facility LC, unless such LC Issuer, as the case may be, shall have entered into arrangements with the Company or such Bank, satisfactory to such LC Issuer, as the case may be, to defease any risk to it in respect of any drafts paid by an Issuing Bank under any Letters of Credit which a Defaulting Bank has funded its participation obligations and (y) made at a time when the conditions set forth in Section 4.3 are satisfied, such Bank hereunder.
(f) payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Banks pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Bank. In the event that the Paying Agent, the Company, Issuing Bank and each LC Issuer the Company each agrees that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank or upon receipt by the Paying Agent of the confirmation referred to in clause (c) of the definition of “Defaulting Bank”, as applicable, then the Banks’ Pro Rata Shares of the LC Obligations shall be readjusted to reflect the inclusion of such Bank’s Commitment and on such date such Bank shall purchase at par such portion of the Loans of the other Banks as the Paying Agent shall determine may be necessary in order for such Bank to hold such Loans ratably in accordance with its Pro Rata Share of the Aggregate Commitment; provided, that if the Company cash collateralized any portion of such Defaulting Bank’s Pro Rata Share of the LC Obligations pursuant to Section 4.7(c), such cash shall be returned to the Company.
Appears in 1 contract
Sources: Revolving Credit Facility Agreement (Southwest Airlines Co)
Defaulting Banks. Notwithstanding any provision of this Agreement to the contrary, if (a) If any Bank becomes with a Revolving Credit Commitment becomes, and during the period it remains, a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Commitment Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Bank pursuant to Section 2.5(a);
(b) the Commitment and Outstanding Credit Exposure of such Defaulting Bank shall not be included in determining whether the Majority Banks have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.1); providedapply, that, except as otherwise provided in Section 10.1, this clause (b) shall not apply notwithstanding anything to the vote of a Defaulting Bank contrary in the case of an amendment, waiver or other modification requiring the consent of such Bank or each Bank directly affected thereby;
(c) if any LC Obligations exist at the time a Bank becomes a Defaulting Bank thenthis Agreement:
(i) so long as no Default or Event of Default shall be continuing immediately before or after giving effect to such reallocation, all or any part of such LC Obligation shall Defaulting Bank's participation in Letter of Credit Outstandings and Swing Loans will, subject to the limitation in the proviso below, automatically be reallocated (effective no later than one (1) Business Day after the Administrative Agent has actual knowledge that such Bank has become a Defaulting Bank) among the nonNon-Defaulting Banks pro rata in accordance with their respective Pro Rata Share but only Revolver Percentages (calculated as if the Defaulting Bank's Revolving Credit Commitment was reduced to zero and each Non-Defaulting Bank's Revolving Credit Commitment had been increased proportionately); provided that the sum of each Non-Defaulting Bank's total Revolving Credit Exposure may not in any event exceed the Revolving Credit Commitment of such Non-Defaulting Bank as in effect at the time of such reallocation; and
(ii) to the extent that any portion (xthe "unreallocated portion") of such Defaulting Bank's participation in Letter of Credit Outstandings and Swing Loans cannot be reallocated pursuant to clause (i) above for any reason, the sum Borrower will, not later than two (2) Business Days after demand by the Administrative Agent (at the direction of all non-Defaulting Banks’ Outstanding any Letter of Credit Exposure does not exceed Issuer and/or the total of all non-Defaulting Banks’ CommitmentsSwing Lender), (y) no Cash Collateralize the obligations of the Borrower to such Letter of Credit Issuer or the Swing Lender in respect of such exposure, as the case may be, in an amount at least equal to the aggregate amount of the unreallocated portion of such Defaulting Bank’s Outstanding 's participation in Letter of Credit Exposure shall exceed its Commitment Outstandings and Swing Loans or (z) make other arrangements satisfactory to the Administrative Agent, the Letter of Credit Issuer and the Swing Lender in their sole discretion to protect them against the risk of non-payment by such Defaulting Bank; provided that, subject to Section 10.17, neither any such reallocation nor any payment by a Non-Defaulting Bank pursuant thereto nor any such Cash Collateralization or reduction will constitute a waiver or release of any claim the Borrower, the Administrative Agent, a Letter of Credit Issuer, the Swing Lender or any other Bank may have against such Defaulting Bank or cause such Defaulting Bank to be a Non-Defaulting Bank.
(b) Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of a Defaulting Bank (whether voluntary or mandatory, at maturity, pursuant to Article 6 or otherwise) or received by the Administrative Agent from a Defaulting Bank pursuant to Section 10.4 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 Bank to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Bank to the Letter of Credit Issuer or the Swing Lender hereunder; third, to Cash Collateralize the unreallocated portion of such Defaulting Bank's participation in Letter of Credit Outstandings and Swing Loans in accordance with Section 2.17(a)(ii); fourth, if such Defaulting Bank is a CAD Non-Funding Bank, to the payment of any amounts owing by such Defaulting Bank to the CAD Fronting Bank as provided in Section 2.1(h)(ii); fifth, as the Borrower may request (so long as no Default or Event of Default exists), to the funding of any Loan or funded participation in respect of which such Defaulting Bank has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; sixth, if so determined by the Administrative Agent and the Borrower, to be held in a deposit account and released pro rata in order to (A) satisfy such Defaulting Bank's potential future funding obligations with respect to Loans and funded participations under this Agreement and (B) Cash Collateralize future unreallocated portions of such Defaulting Bank's participation in Letter of Credit Outstandings and Swing Loans with respect to future Letters of Credit and Swing Loans issued under this Agreement in accordance with Section 2.17(a)(ii); seventh, to the payment of any amounts owing to the Banks, the Letter of Credit Issuer or the Swing Lender as a result of any judgment of a court of competent jurisdiction obtained by any Bank, such Letter of Credit Issuer or the Swing Lender against such Defaulting Bank as a result of such Defaulting Bank's breach of its obligations under this Agreement; eighth, 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 Bank as a result of such Defaulting Bank's breach of its obligations under this Agreement; and ninth, to such Defaulting Bank or as otherwise directed by a court of competent jurisdiction; provided that if (1) such payment is a payment of the principal amount of any Loans or funded participations in Letters of Credit or Swing Loans in respect of which such Defaulting Bank has not fully funded its appropriate share, and (2) such Loans were made or the related Letters of Credit or Swing Loans were issued at a time when the conditions set forth in Section 11.2 are 3.2 were satisfied at or waived, such time;
(ii) if payment shall be applied solely to pay the reallocation described Loans of, and funded participations in subclause (i) above cannotLetters of Credit or Swing Loans owed to, all Non-Defaulting Banks on a pro rata basis prior to being applied to the payment of any Loans of, or can only partiallyfunded participations in Letters of Credit or Swing Loans owed to, be effected, the Company shall within one (1) Business Day following notice such Defaulting Bank until such time as all Loans and funded and unfunded participations in Letter of Credit Outstandings and Swing Loans are held by the Agent, cash collateralize for the benefit of the relevant LC Issuer such Defaulting Bank’s Pro Rata Share of the LC Obligations (after giving effect to any partial reallocation pursuant to subclause (i) above) Banks pro rata in accordance with the procedures set forth in Revolving Credit Commitments under the applicable Revolving Credit without giving effect to Section 9.2 for so long as such LC Obligation is outstanding;
2.17(a)(i). Any payments, prepayments or other amounts paid or payable to a Defaulting Bank that are applied (iiior held) if the Company cash collateralizes any portion of to pay amounts owed by a Defaulting Bank or to post Cash Collateral pursuant to this Section 2.17(b) shall be deemed paid to and redirected by such Defaulting Bank’s Pro Rata Share , and each Bank irrevocably consents hereto.
(c) If the Borrower, the Administrative Agent, the Letter of Credit Issuers and the Swing Lender agree in writing in their discretion that any Defaulting Bank has ceased to be a Defaulting Bank, the Administrative Agent will so notify the parties hereto, whereupon as of the LC Obligations pursuant this clause (ceffective date specified in such notice, and subject to any conditions set forth therein, that Bank will, to the extent applicable, purchase at par that portion of outstanding Loans of the other Banks or take such other actions as the Administrative Agent may determine to be necessary to cause the Loans and funded and unfunded participations in Letters of Credit and Swing Loans to be held pro rata by the Banks in accordance with their Percentage under the applicable Credit without giving effect to Section 2.17(a), the Company shall not whereupon such Bank will cease to be required to pay any fees to such a Defaulting Bank pursuant to Section 3.4 Bank; provided that no adjustments will be made retroactively with respect to such fees accrued or payments made by or on behalf of the Borrower while that Bank was a Defaulting Bank’s Pro Rata Share ; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Bank to Non-Defaulting Bank will constitute a waiver or release of the LC Obligations during the period such any claim of any party hereunder arising from that Bank's having been a Defaulting Bank’s Pro Rata Share of the LC Obligations is cash collateralized;
(iv) if the non-Defaulting Banks’ Pro Rata Share of the LC Obligations is reallocated pursuant to this clause (c), then the fees payable to the Banks pursuant to Section 2.5(a) and Section 3.4 shall be adjusted in accordance with such non-Defaulting Banks’ Pro Rata Shares; or
(v) if any Defaulting Bank’s Pro Rata Share of the LC Obligations is neither reallocated nor cash collateralized pursuant to this clause (c), then, without prejudice to any rights or remedies of any LC Issuer or any Bank hereunder, all fees that otherwise would have been payable to such Defaulting Bank (solely with respect to the portion of such Defaulting Bank’s Commitment that was utilized by such LC Obligations) and LC Fees payable under Section 3.4 with respect to such Defaulting Bank’s Pro Rata Share of the LC Obligations shall be payable to the applicable LC Issuer until such Defaulting Bank’s Pro Rata Share of the LC Obligation is cash collateralized and/or reallocated; and.
(d) so So long as any Bank is a Defaulting Bank, no LC Letter of Credit Issuer shall will be required to issue issue, amend, extend, renew or Modify increase any Facility LC, Letter of Credit unless it is reasonably satisfied that the related exposure will be 100% covered by Borrower has complied with the Commitments requirements of the non-Defaulting Banks and/or cash collateral will be provided by the Company in accordance with clause (c) above, and participating interests in any such newly issued or Modified Facility LC shall be allocated among non-Defaulting Banks in a manner consistent with clause(c)(i) above (and Defaulting Banks shall not participate thereinSection 2A.1(a)(iii).
(e) If No Defaulting Bank shall be entitled to receive any commitment fee pursuant to Section 2.7(a) or Letter of Credit Fee for any period during which that Bank is a Defaulting Bank. With respect to any commitment fee pursuant to Section 2.7(a) or Letter of Credit Fee not required to be paid to any Defaulting Bank pursuant to this clause (ie), the Borrower shall (x) a Bankruptcy Event pay to each Non-Defaulting Bank that portion of any such fee otherwise payable to such Defaulting Bank with respect to a Parent such Defaulting Bank's participation in Letters of Credit or Swing Loans that has been reallocated to such Non-Defaulting Bank pursuant to Section 2.17(a)(i), (y) pay to each Letter of Credit Issuer and Swing Lender, as applicable, the amount of any such fee otherwise payable to such Defaulting Bank shall occur following to the date hereof extent allocable to such Letter of Credit Issuer or Swing Lender's Fronting Exposure to such Defaulting Bank, and for so long as such event shall continue or (iiz) any LC Issuer has a good faith belief that any Bank has defaulted in fulfilling its obligations under one or more other agreements in which such Bank commits to extend credit, such LC Issuer shall not be required to issue, amend or increase pay the remaining amount of any Facility LC, unless such LC Issuer, as the case may be, shall have entered into arrangements with the Company or such Bank, satisfactory to such LC Issuer, as the case may be, to defease any risk to it in respect of such Bank hereunderfee.
(f) In the event that the Agent, the Company, and each LC Issuer each agrees that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the Banks’ Pro Rata Shares of the LC Obligations shall be readjusted to reflect the inclusion of such Bank’s Commitment and on such date such Bank shall purchase at par such of the Loans of the other Banks as the Agent shall determine may be necessary in order for such Bank to hold such Loans in accordance with its Pro Rata Share of the Aggregate Commitment; provided, that if the Company cash collateralized any portion of such Defaulting Bank’s Pro Rata Share of the LC Obligations pursuant to Section 4.7(c), such cash shall be returned to the Company.
Appears in 1 contract
Defaulting Banks. (a) Notwithstanding any provision of this Agreement to the contrary, if any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(ai) Commitment Fees facility fees shall cease to accrue accrue, or to be payable by the Borrower, on the unfunded portion of the Commitment of such Defaulting Bank pursuant to Section 2.5(a)2.09(a) for the account of such Defaulting Bank or otherwise;
(bii) Letter of Credit Fees shall cease to accrue, or to be payable by the Borrower, on the Pro Rata Share of a Letter of Credit of such Defaulting Bank pursuant to Section 2.09(c) for the account of such Defaulting Bank or otherwise;
(iii) the Commitment and Outstanding or Credit Exposure of such Defaulting Bank shall not be included in determining whether all Banks or the Majority Required Banks have taken or may take any action hereunder (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 10.19.05); provided, thathowever, except as otherwise provided in Section 10.1, that this clause (biii) shall not (subject to Section 9.05) apply to the vote of a Defaulting Bank in the case of an amendment, waiver or other modification specifically requiring the consent of such Bank or each Bank directly affected thereby;thereby (and in circumstances where the consent of “all Banks” is required, such Defaulting Bank’s vote shall not be included except (A) such Defaulting Bank’s Commitment may not be increased or extended without its consent and (B) the principal amount of, or interest or fees payable on, Loans or L/C Borrowings may not be reduced or excused or the scheduled date of payment may not be postponed as to such Defaulting Bank without such Defaulting Bank’s consent); and
(civ) if any LC Obligations exist L/C ObligationsObligation exists at the time a such Bank becomes a Defaulting Bank then:
(iA) so long as provided that no Default or Event of Default shall be continuing immediately before or after giving effect to such reallocationexists, all or any part of such LC Obligation Defaulting Bank’s Pro Rata Share of the Outstanding Amount of all L/C Obligations shall be reallocated among the non-Defaulting Banks in accordance with their respective Pro Rata Share Shares but only to the extent that (x) the sum aggregate principal amount of Revolving Loans of all non-Defaulting Banks’ Bank’s plus such Defaulting Bank’s Pro Rata Share of the Outstanding Credit Exposure does Amount of all L/C Obligations do not exceed the total of all non-non- Defaulting Banks’ Commitments, (y) no Bank’s Outstanding Credit Exposure shall exceed its Commitment and (z) the conditions set forth in Section 11.2 are satisfied at such time;
(iiB) if the reallocation described in subclause clause (iA) above cannot, or can only partially, be effected, the Company Borrower shall within one (1) Domestic Business Day following notice by the AgentSubsidiary’s assets, cash collateralize for the benefit of the relevant LC Issuer such Defaulting Bank’s Pro Rata Share of the LC Obligations (after giving effect to any partial reallocation pursuant to subclause except Liens (i) abovegranted by the Borrower to the trustee pursuant to any Indenture, (ii) in accordance with on any such Indebtedness granted by the procedures set forth in Section 9.2 Borrower or its Consolidated Entity to secure any borrowing for so long the purpose of making loans to Member power supply systems or loans to Members for bulk power supply projects or loans to Members for the purpose of providing financing to telephone and related systems eligible to borrow from the RUS or loans to borrowers borrowing from National Cooperative Services Corporation or Rural Telephone Finance Cooperative, which borrowing or borrowings are on terms (except as to terms of interest, premium, if any, and amortization) not materially more disadvantageous to the Borrower’s unsecured creditors than the borrowings under any Indenture (it being understood that the Borrower can not pledge such LC Obligation is outstanding;
assets to an extent greater than 150% of the aggregate principal amount of such Indebtedness), (iii) if the Company cash collateralizes any portion of such Defaulting Bank’s Pro Rata Share current taxes not delinquent or a security for taxes being contested in good faith, (iv) other than in favor of the LC Obligations pursuant this clause PBGC, created by or resulting from any legal proceedings (cincluding legal proceedings instituted by the Borrower or any Subsidiary) which are being contested in good faith by appropriate proceedings, including appeals of judgments as to which a stay of execution shall have been issued, and adequate reserves shall have been established, (v) created by the Borrower to secure Guarantees by the Borrower of Indebtedness, the interest on which is excludable from the gross income of the recipient thereof for Federal income tax purposes as provided in Section 103(a) of the Internal Revenue Code or Section 103(a) of the Internal Revenue Code of 1954, as amended, (x) of a Member which is a state or political subdivision thereof or (y) of a state or political subdivision thereof incurred to benefit a Member for one of the purposes provided in Section 142(a)(2), (4), (5), (6), (8), (9), (10) or (12) of the Company shall not be required Internal Revenue Code or Section 103(b)(4)(D), (E), (F), (G), (H) or (J) of the Internal Revenue Code of 1954, as amended, (vi) granted by any Subsidiary to pay any fees to such Defaulting Bank pursuant to Section 3.4 the Borrower, (vii) REDLG Program Liens securing REDLG Obligations with respect to such Defaulting Bank’s Pro Rata Share government Guarantees of Indebtedness of the LC Obligations during Borrower and (viii) on any such Indebtedness granted by the period Borrower to secure any borrowings, which borrowings are on terms (except as to terms of interest, premium, if any, and amortization) not materially more disadvantageous to the Borrower’s unsecured creditors than the borrowings under any Indenture (it being understood that the Borrower can not pledge such Defaulting Bank’s Pro Rata Share assets to an extent greater than 150% of the LC Obligations is cash collateralized;
aggregate principal amount of such Indebtedness); provided that Liens incurred in reliance on clauses (iv) if the non-Defaulting Banks’ Pro Rata Share of the LC Obligations is reallocated pursuant to this clause (cii), then the fees payable to the Banks pursuant to Section 2.5(a(vii) and (viii) of this Section 3.4 shall be adjusted in accordance with such non-Defaulting Banks’ Pro Rata Shares; or
(v) if any Defaulting Bank’s Pro Rata Share of the LC Obligations is neither reallocated nor cash collateralized pursuant to this clause (c), then, without prejudice to any rights or remedies of any LC Issuer or any Bank hereunder, all fees that otherwise would have been payable to such Defaulting Bank (solely with respect to the portion of such Defaulting Bank’s Commitment that was utilized by such LC Obligations) and LC Fees payable under Section 3.4 with respect to such Defaulting Bank’s Pro Rata Share of the LC Obligations shall be payable to the applicable LC Issuer until such Defaulting Bank’s Pro Rata Share of the LC Obligation is cash collateralized and/or reallocated; and
(d) so long as any Bank is a Defaulting Bank, no LC Issuer shall be required to issue or Modify any Facility LC, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Banks and/or cash collateral will be provided by the Company in accordance with clause (c) above, and participating interests in any such newly issued or Modified Facility LC shall be allocated among non-Defaulting Banks in a manner consistent with clause(c)(i) above (and Defaulting Banks 5.10 shall not participate therein)secure amounts exceeding $7,500,000,000 in the aggregateLien Exception Amount at any one time outstanding.
(e) If (i) a Bankruptcy Event with respect to a Parent of any Bank shall occur following the date hereof and for so long as such event shall continue or (ii) any LC Issuer has a good faith belief that any Bank has defaulted in fulfilling its obligations under one or more other agreements in which such Bank commits to extend credit, such LC Issuer shall not be required to issue, amend or increase any Facility LC, unless such LC Issuer, as the case may be, shall have entered into arrangements with the Company or such Bank, satisfactory to such LC Issuer, as the case may be, to defease any risk to it in respect of such Bank hereunder.
(f) In the event that the Agent, the Company, and each LC Issuer each agrees that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the Banks’ Pro Rata Shares of the LC Obligations shall be readjusted to reflect the inclusion of such Bank’s Commitment and on such date such Bank shall purchase at par such of the Loans of the other Banks as the Agent shall determine may be necessary in order for such Bank to hold such Loans in accordance with its Pro Rata Share of the Aggregate Commitment; provided, that if the Company cash collateralized any portion of such Defaulting Bank’s Pro Rata Share of the LC Obligations pursuant to Section 4.7(c), such cash shall be returned to the Company.
Appears in 1 contract
Sources: Revolving Credit Agreement (National Rural Utilities Cooperative Finance Corp /Dc/)
Defaulting Banks. Notwithstanding any provision of this Agreement to the contrary, if If any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Commitment Fees shall cease to accrue on the unfunded portion of neither the Commitment of such Defaulting Bank pursuant to Section 2.5(a);
(b) nor the Commitment and Outstanding Credit Exposure Loans of such Defaulting Bank shall not be included in determining whether all Banks or the Majority Required Banks have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.19.05); providedprovided that any waiver, that, except as otherwise provided in Section 10.1, this clause (b) shall not apply to the vote of a Defaulting Bank in the case of an amendment, waiver amendment or other modification requiring the consent of all Banks which affects such Defaulting Bank differently than other affected Banks shall require the consent of such Defaulting Bank; provided, further, that no waiver, amendment or each modification of the type described in clauses (a)(i), (ii) or (iii) of Section 9.05 may be made without the written consent of any Defaulting Bank directly affected thereby;
(c) if any LC Obligations exist at the time a Bank becomes a Defaulting Bank then:
(i) so long as no Default or Event of Default shall be continuing immediately before or after giving effect to such reallocation, all or any part of such LC Obligation shall be reallocated among the non-Defaulting Banks in accordance with their respective Pro Rata Share but only to the extent that (xb) the sum of all non-Defaulting Banks’ Outstanding Credit Exposure does not exceed the total of all non-Defaulting Banks’ CommitmentsCompany may, (y) no Bank’s Outstanding Credit Exposure shall exceed at its Commitment and (z) the conditions set forth in Section 11.2 are satisfied at such time;
(ii) if the reallocation described in subclause (i) above cannotsole expense, or can only partially, be effected, the Company shall within one (1) Business Day following upon notice by the Agent, cash collateralize for the benefit of the relevant LC Issuer such Defaulting Bank’s Pro Rata Share of the LC Obligations (after giving effect to any partial reallocation pursuant to subclause (i) above) in accordance with the procedures set forth in Section 9.2 for so long as such LC Obligation is outstanding;
(iii) if the Company cash collateralizes any portion of such Defaulting Bank’s Pro Rata Share of the LC Obligations pursuant this clause (c), the Company shall not be required to pay any fees to such Defaulting Bank and the Administrative Agent, require such Defaulting Bank to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in Section 9.06, with the Company or the replacement Bank paying the processing and recording fee), all of its interests, rights and obligations under this Agreement to an Assignee that shall assume such obligations (which Assignee may be another Bank, if a Bank accepts such assignment); provided that (i) the Company shall have received the prior written consent of the Administrative Agent to such assignment (to the extent such consent would otherwise be required pursuant to Section 3.4 with respect 9.06), which consent shall not unreasonably be withheld, delayed or conditioned, and (ii) such Defaulting Bank shall have received payment of an amount equal to the outstanding principal of its Loans, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the Assignee (to the extent of such outstanding principal and accrued interest and fees) or the Company;
(c) [reserved];
(d) notwithstanding any contrary provision in this Agreement, the Company may (i) prepay, without penalty or premium, the Loans made by a Defaulting Bank and (ii) terminate the unused amount of the Commitment of a Defaulting Bank, in each case, (x) without pro rata prepayment of Loans of other Banks or pro rata termination of Commitments of other Banks and (y) upon not less than two Business Days’ prior notice to the Administrative Agent (which will promptly notify the Banks thereof), it being understood that such prepayment and termination will not be deemed to be a waiver or release of any claim the Company or the Administrative Agent may have against such Defaulting Bank’s Pro Rata Share of the LC Obligations during the period such Defaulting Bank’s Pro Rata Share of the LC Obligations is cash collateralized;; and
(ive) if the non-Defaulting Banks’ Pro Rata Share of the LC Obligations is reallocated pursuant to nothing in this clause (c), then the fees payable to the Banks pursuant to Section 2.5(a) and Section 3.4 shall be adjusted in accordance with such non-Defaulting Banks’ Pro Rata Shares; or
(v) if any Defaulting Bank’s Pro Rata Share of the LC Obligations is neither reallocated nor cash collateralized pursuant to this clause (c), then, without prejudice to affect any rights or remedies of the Company may have against any LC Issuer or any Bank hereunder, all fees that otherwise would have been payable to such Defaulting Bank (solely with respect to the portion of such Defaulting Bank’s Commitment that was utilized by such LC Obligations) and LC Fees payable under Section 3.4 with respect to such Defaulting Bank’s Pro Rata Share of the LC Obligations shall be payable to the applicable LC Issuer until such Defaulting Bank’s Pro Rata Share of the LC Obligation is cash collateralized and/or reallocated; and
(d) so long as any Bank is a Defaulting Bank, no LC Issuer shall be required to issue or Modify any Facility LC, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Banks and/or cash collateral will be provided by the Company in accordance with clause (c) above, and participating interests in any such newly issued or Modified Facility LC shall be allocated among non-Defaulting Banks in a manner consistent with clause(c)(i) above (and Defaulting Banks shall not participate therein).
(e) If (i) a Bankruptcy Event with respect to a Parent of any Bank shall occur following the date hereof and for so long as such event shall continue or (ii) any LC Issuer has a good faith belief that any Bank has defaulted in fulfilling its obligations under one or more other agreements in which such Bank commits to extend credit, such LC Issuer shall not be required to issue, amend or increase any Facility LC, unless such LC Issuer, as the case may be, shall have entered into arrangements with the Company or such Bank, satisfactory to such LC Issuer, as the case may be, to defease any risk to it in respect of such Bank hereunder.
(f) . In the event and on the date that the Agent, Administrative Agent and the Company, and Company each LC Issuer each agrees agree that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the Banks’ Pro Rata Shares of the LC Obligations shall be readjusted to reflect the inclusion of such Bank’s Commitment and on such date such Bank shall purchase at par such of the Loans of the other Banks as the Administrative Agent shall determine may be necessary in order for such Bank to hold such Loans in accordance with its Pro Rata Share of the Aggregate Commitment; provided, that if the Company cash collateralized any portion of Commitment and such Bank shall no longer be a Defaulting Bank’s Pro Rata Share of the LC Obligations . Each party hereto agrees that (a) an assignment required pursuant to Section 4.7(c)2.16(b) may be effected pursuant to an Assignment and Assumption Agreement executed by the Company, the Administrative Agent and the assignee and (b) the Bank required to make such cash assignment need not be a party thereto in order for such assignment to be effective and shall be returned deemed to have consented to and be bound by the Companyterms thereof; provided that, following the effectiveness of any such assignment, the other parties to such assignment agree to execute and deliver such documents necessary to evidence such assignment as reasonably requested by the applicable Bank, provided, further, that any such documents shall be without recourse to or warranty by the parties thereto.
Appears in 1 contract
Sources: 364 Day Term Loan Credit Agreement (Rockwell Automation, Inc)
Defaulting Banks. Notwithstanding any provision of this Agreement to the contrary, if any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Commitment Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Bank pursuant to Section 2.5(a);2.06.
(b) the Commitment The Commitments and Outstanding Credit Exposure Loans of such Defaulting Bank shall not be included in determining whether all Banks or the Majority Banks have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.1); provided, that, except as otherwise provided in Section 10.1, this clause (b) shall not apply to the vote of a Defaulting Bank in the case of an amendment, waiver or other modification pursuant to Section 11.04); provided that any waiver, amendment or modification (x) increasing or extending the term of the Commitment of, reducing amounts owed to or extending the final maturity of the loans of such Defaulting Bank or (y) requiring the consent of such Bank all Banks or each affected Bank directly which affects such Defaulting Bank differently than other affected therebyBanks shall, in each case, require the consent of such Defaulting Bank;
(c) if If any LC Obligations exist L/C Exposure exists at the time a such Bank becomes a Defaulting Bank then:
(i) so long as no Default or Event of Default shall be continuing immediately before or after giving effect to such reallocation, all or any part of the L/C Exposure of such LC Obligation Defaulting Bank shall be reallocated among the non-Defaulting Banks in accordance with their respective Pro Rata Share Revolving Percentages but only to the extent that (xi) the sum of all non-Defaulting Banks’ Outstanding Revolving Extensions of Credit plus such Defaulting Bank’s L/C Exposure does not exceed the total of all non-Defaulting Banks’ CommitmentsCommitments and (ii) with respect to each such non-Defaulting Bank, (y) no the sum of such non-Defaulting Bank’s Outstanding Revolving Extensions of Credit plus its allocated percentage of such Defaulting Bank’s L/C Exposure shall does not exceed its Commitment and (z) the conditions set forth in Section 11.2 are satisfied at such timenon-Defaulting Bank’s Commitment;
(ii) if If the reallocation described in subclause clause (i) above cannot, or can only partially, be effected, the Company shall within one (1) Business Day following notice by the Agent, Administrative Agent cash collateralize for the benefit of the relevant LC Issuer applicable Issuing Lenders only the Company’s obligations corresponding to such Defaulting Bank’s Pro Rata Share of the LC Obligations L/C Exposure (after giving effect to any partial reallocation pursuant to subclause clause (i) above) in accordance with the procedures set forth in Section 9.2 for so long as such LC Obligation L/C Exposure is outstanding;
(iii) if If the Company cash collateralizes any portion of such Defaulting Bank’s Pro Rata Share of the LC Obligations L/C Exposure pursuant this to clause (c)ii) above, the Company shall not be required to pay any fees to such Defaulting Bank pursuant to Section 3.4 2.04(c)(i) with respect to such Defaulting Bank’s Pro Rata Share of the LC Obligations L/C Exposure during the period such Defaulting Bank’s Pro Rata Share of the LC Obligations L/C Exposure is cash collateralized;
(iv) if If the L/C Exposure of the non-Defaulting Banks’ Pro Rata Share of the LC Obligations Bank is reallocated pursuant to this clause (c)i) above, then the fees payable to the Banks pursuant to Section 2.5(a2.06(a) and Section 3.4 2.04(c)(i) shall be adjusted in accordance with such non-Defaulting Banks’ Pro Rata SharesRevolving Percentages; orand
(v) if If all or any portion of such Defaulting Bank’s Pro Rata Share of the LC Obligations L/C Exposure is neither reallocated nor cash collateralized pursuant to this clause (c)i) or (ii) above, then, without prejudice to any rights or remedies of any LC Issuer Issuing Lender or any other Bank hereunder, all fees that otherwise would have been payable to such Defaulting Bank (solely with respect to the portion of such Defaulting Bank’s Commitment that was utilized by such LC Obligations) and LC Fees payable under Section 3.4 2.04(c)(i) with respect to such Defaulting Bank’s Pro Rata Share of the LC Obligations L/C Exposure shall be payable to such Issuing Lender until and to the applicable LC Issuer until extent that such Defaulting Bank’s Pro Rata Share of the LC Obligation L/C Exposure is reallocated and/or cash collateralized and/or reallocated; andcollateralized;
(d) so long as any such Bank is a Defaulting Bank, no LC Issuer Issuing Lender shall be required to issue issue, amend or Modify increase any Facility LCLetter of Credit, unless it is satisfied that the related exposure and the Defaulting Bank’s then outstanding L/C Exposure will be 100% covered by the Commitments of the non-Defaulting Banks and/or cash collateral will be provided by the Company in accordance with clause (c) aboveSection 2.12(c), and participating interests in any such newly issued or Modified Facility LC increased Letter of Credit shall be allocated among non-Defaulting Banks in a manner consistent with clause(c)(iSection 2.12(c) above (and such Defaulting Banks Bank shall not participate therein).
(e) If Any amount payable to such Defaulting Bank hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Bank pursuant to Section 4.07(b) but excluding Section 5.07) shall, in lieu of being distributed to such Defaulting Bank, be retained by the Administrative Agent in a segregated account and, subject to any applicable requirements of law, be applied at such time or times as may be determined by the Administrative Agent (i) first, to the payment of any amounts owing by such Defaulting Bank to the Administrative Agent and the Issuing Lenders hereunder, (ii) second, to the funding of any Loan or participation in any Letter of Credit in respect of which such Defaulting Bank has failed to fund its portion thereof as required by this Agreement, (iii) third, if so determined by the Administrative Agent and the Company, held in such account as cash collateral for future funding obligations of the Defaulting Bank in respect of any Loans or participations in Letters of Credit under this Agreement, (iv) fourth, to the payment of any amounts then owing to the Banks or Issuing Lenders as a Bankruptcy Event result of any judgment of a court of competent jurisdiction obtained by any Bank or Issuing Lender against such Defaulting Bank as a result of such Defaulting Bank’s breach of its obligations under this Agreement, (v) fifth, to the payment of any amounts then owing to the Company as a result of any judgment of a court of competent jurisdiction obtained by the Company against such Defaulting Bank as a result of such Defaulting Bank’s breach of its obligations under this Agreement, and (vi) sixth, to such Defaulting Bank or as otherwise directed by a court of competent jurisdiction; provided, with respect to this clause (vi), that if such payment is (x) a Parent prepayment of the principal amount of any Bank shall occur following Loans and (y) made at a time when the date hereof and for so long as such event shall continue or (ii) any LC Issuer has a good faith belief that any Bank has defaulted conditions set forth in fulfilling its obligations under one or more other agreements in which such Bank commits to extend creditSection 6.02 are satisfied, such LC Issuer payment shall not be required applied solely to issueprepay the Loans of all non-Defaulting Banks pro rata prior to being applied to the prepayment of any Loans, amend or increase reimbursement obligations owed to, any Facility LC, unless such LC Issuer, as the case may be, shall have entered into arrangements with the Company or such Defaulting Bank, satisfactory to such LC Issuer, as the case may be, to defease any risk to it in respect of such Bank hereunder.
(f) . In the event that the Administrative Agent, the Company, Issuing Lenders and each LC Issuer the Company each agrees that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the Banks’ Pro Rata Shares L/C Exposure of the LC Obligations Banks shall be readjusted to reflect the inclusion of such Bank’s Commitment and on such date such previously Defaulting Bank shall purchase at par such of the Loans of the other Banks as the Administrative Agent shall determine may be necessary in order for such previously Defaulting Bank to hold such Loans in accordance with its Pro Rata Share of the Aggregate Commitment; provided, that if the Company cash collateralized any portion of such Defaulting Bank’s Pro Rata Share of the LC Obligations pursuant to Section 4.7(c), such cash shall be returned to the CompanyRevolving Percentage.
Appears in 1 contract
Sources: Revolving Credit Agreement (Motorola Solutions, Inc.)
Defaulting Banks. Notwithstanding any provision of this Agreement to the contrary, if any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Commitment Fees 2.13.1 fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Bank pursuant to Section 2.5(a)2.3 [Commitment Fees];
(b) 2.13.2 the Commitment and Outstanding Credit Exposure outstanding Loans of such Defaulting Bank shall not be included in determining whether the Majority Required Banks have taken or may take any action hereunder (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 10.110.1 [Modifications, Amendments or Waivers]); provided, that, except as otherwise provided in Section 10.1, that this clause (bii) shall not apply to the vote of a Defaulting Bank in the case of an amendment, waiver or other modification requiring the consent of such Bank or each Bank directly affected thereby;
(c) 2.13.3 if any LC Swing Loans are outstanding or any Letter of Credit Obligations exist at the time a such Bank becomes a Defaulting Bank Bank, then:
(i) so long as no Default or Event of Default shall be continuing immediately before or after giving effect to such reallocation, 2.13.3.1 all or any part of the outstanding Swing Loans and Letter of Credit Obligations of such LC Obligation Defaulting Bank shall be reallocated among the non-Defaulting Banks in accordance with their respective Pro Rata Share Ratable Shares but only to the extent that (x) the sum of all non-Defaulting Banks’ Outstanding Credit Exposure Dollar Equivalent Revolving Facility Usage does not exceed the total of all non-Defaulting Banks’ ' Revolving Credit Commitments, and (y) no Bank’s Outstanding Credit Exposure shall exceed its Commitment Potential Default or Event of Default has occurred and (z) the conditions set forth in Section 11.2 are satisfied is continuing at such time;
(ii) 2.13.3.2 if the reallocation described in subclause (i) Section 2.13.3.1 above cannot, or can only partially, be effected, the Company Borrower shall within one (1) Business Day following notice by the AgentAdministrative Agent (x) first, prepay such outstanding Swing Loans, and (y) second, cash collateralize for the benefit of the relevant LC Issuer Issuing Bank the Borrower's obligations corresponding to such Defaulting Bank’s Pro Rata Share 's Letter of the LC Credit Obligations (after giving effect to any partial reallocation pursuant to subclause (i) Section 2.13.3.1 above) in accordance with a deposit account held at the procedures set forth in Section 9.2 Administrative Agent for so long as such LC Obligation is Letter of Credit Obligations are outstanding;
(iii) 2.13.3.3 if the Company Borrower cash collateralizes any portion of such Defaulting Bank’s Pro Rata Share 's Letter of the LC Credit Obligations pursuant this clause (c)to Section 2.13.3.2 above, the Company Borrower shall not be required to pay any fees to such Defaulting Bank pursuant to Section 3.4 2.9.2 [Letter of Credit Fees] with respect to such Defaulting Bank’s Pro Rata Share 's Letter of the LC Credit Obligations during the period such Defaulting Bank’s Pro Rata Share 's Letter of the LC Credit Obligations is are cash collateralized;
(iv) 2.13.3.4 if the Letter of Credit Obligations of the non-Defaulting Banks’ Pro Rata Share of the LC Obligations is Banks are reallocated pursuant to this clause (c)Section 2.13.3.1 above, then the fees payable to the Banks pursuant to Section 2.5(a) and Section 3.4 2.9.2 shall be adjusted in accordance with such non-Defaulting Banks’ Pro Rata Shares' Ratable Share; orand
(v) 2.13.3.5 if all or any portion of such Defaulting Bank’s Pro Rata Share 's Letter of the LC Credit Obligations is are neither reallocated nor cash collateralized pursuant to this clause (c)Section 2.13.3.1 or 2.13.3.2 above, then, without prejudice to any rights or remedies of any LC Issuer the Issuing Bank or any other Bank hereunder, all fees that otherwise would have been payable to such Defaulting Bank (solely with respect to the portion Letter of such Defaulting Bank’s Commitment that was utilized by such LC Obligations) and LC Credit Fees payable under Section 3.4 2.9.2 with respect to such Defaulting Bank’s Pro Rata Share 's Letter of the LC Credit Obligations shall be payable to the applicable LC Issuer until Issuing Bank (and not to such Defaulting Bank’s Pro Rata Share ) until and to the extent that such Letter of the LC Obligation is Credit Obligations are reallocated and/or cash collateralized and/or reallocatedcollateralized; and
(d) so long as any Bank is a Defaulting Bank, no LC Issuer shall be required to issue or Modify any Facility LC, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Banks and/or cash collateral will be provided by the Company in accordance with clause (c) above, and participating interests in any such newly issued or Modified Facility LC shall be allocated among non-Defaulting Banks in a manner consistent with clause(c)(i) above (and Defaulting Banks shall not participate therein).
(e) If (i) a Bankruptcy Event with respect to a Parent of any Bank shall occur following the date hereof and for so long as such event shall continue or (ii) any LC Issuer has a good faith belief that any Bank has defaulted in fulfilling its obligations under one or more other agreements in which such Bank commits to extend credit, such LC Issuer shall not be required to issue, amend or increase any Facility LC, unless such LC Issuer, as the case may be, shall have entered into arrangements with the Company or such Bank, satisfactory to such LC Issuer, as the case may be, to defease any risk to it in respect of such Bank hereunder.
(f) In the event that the Agent, the Company, and each LC Issuer each agrees that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the Banks’ Pro Rata Shares of the LC Obligations shall be readjusted to reflect the inclusion of such Bank’s Commitment and on such date such Bank shall purchase at par such of the Loans of the other Banks as the Agent shall determine may be necessary in order for such Bank to hold such Loans in accordance with its Pro Rata Share of the Aggregate Commitment; provided, that if the Company cash collateralized any portion of such Defaulting Bank’s Pro Rata Share of the LC Obligations pursuant to Section 4.7(c), such cash shall be returned to the Company.
Appears in 1 contract
Defaulting Banks. Notwithstanding any provision of this Agreement to the contrary, if any Bank becomes a Defaulting Bank, Bank then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Commitment Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Bank pursuant to Section 2.5(a5.04(a);. Each Defaulting Bank shall be entitled to receive Letter of Credit Fees under Section 5.04(b) for any period during which such Bank is a Defaulting Bank only to the extent allocable to its L/C Exposure of the stated amount of Letters of Credit for which it has provided cash collateral to the Administrative Agent.
(b) the Commitment The Commitments and Outstanding Revolving Credit Exposure of such Defaulting Bank shall not be included in determining whether the Majority Banks have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.1); provided, that, except as otherwise provided in Section 10.1, this clause (b11.01) shall not apply to the vote of a Defaulting Bank in the case of an amendment, waiver or other modification requiring the consent of such Bank or each Bank directly affected thereby;which requires Majority Banks consent.
(c) if any LC Obligations exist at the time a Bank becomes a Defaulting Bank then:
(i) so long as no Default or Event of Default shall be continuing immediately before or after giving effect to such reallocation, all All or any part of such LC Obligation any Swingline Exposure or L/C Exposure shall be reallocated among the non-Defaulting Banks in accordance with their respective Pro Rata Share Applicable Percentages but only to the extent that (x) the sum of all such reallocation does not cause any non-Defaulting Banks’ Outstanding Credit Exposure does not exceed the total of all non-Defaulting Banks’ Commitments, (y) no Bank’s Outstanding Credit Exposure shall Bank to exceed its Commitment and (z) the conditions set forth in Section 11.2 are satisfied at Commitment; provided that if such time;
(ii) if the reallocation described in subclause (i) above cannot, or can only partially, be effected, the Company shall one or more Borrowers shall, without prejudice to any right or remedy available to any Borrower hereunder or under law, within one (1) two Business Day Days following notice by the AgentAdministrative Agent (x) first, prepay such Swingline Exposure, and (y) second, cash collateralize for the benefit of the relevant LC Issuer each Issuing Bank such Borrower’s obligations corresponding to such Defaulting Bank’s Pro Rata Share of the LC Obligations L/C Exposure (after giving effect to any partial reallocation pursuant to subclause described in this clause (i) abovec)) in accordance with the procedures set forth in Section 9.2 9.02 for so long as such LC Obligation L/C Exposure is outstanding;. Notwithstanding the foregoing, reallocation of Swingline Exposure or L/C Exposure in accordance with the terms of this Agreement shall not constitute a waiver or release of claims against any such Defaulting Bank.
(iiid) if the Company If a Borrower cash collateralizes any portion of such Defaulting Bank’s Pro Rata Share of the LC Obligations L/C Exposure to such Borrower pursuant this to clause (c)) above, the Company such Borrower shall not be required to pay any fees to such Defaulting Bank pursuant to Section 3.4 5.04(b) with respect to such Defaulting Bank’s Pro Rata Share of the LC Obligations L/C Exposure during the period such Defaulting Bank’s Pro Rata Share of the LC Obligations L/C Exposure is so cash collateralized;.
(ive) if If the L/C Exposure of the non-Defaulting Banks’ Pro Rata Share of the LC Obligations is Banks are reallocated pursuant to this clause (c)) above, then the fees payable to the Banks pursuant to Section 2.5(aSections 5.04(a) and Section 3.4 (b) shall be adjusted in accordance with such non-Defaulting Banks’ Pro Rata Shares; orApplicable Percentages.
(vf) if If all or any portion of such Defaulting Bank’s Pro Rata Share of the LC Obligations L/C Exposure is neither reallocated nor cash collateralized nor reallocated pursuant to this clause (c)) above, then, without prejudice to any rights or remedies of any LC Issuer the Issuing Banks or any other Bank hereunder, all fees Facility Fees that otherwise would have been payable to such Defaulting Bank (solely with respect to the portion of such Defaulting Bank’s Commitment that was utilized by such LC ObligationsL/C Exposure) and LC Letter of Credit Fees payable under Section 3.4 5.04(b) with respect to such Defaulting Bank’s Pro Rata Share of the LC Obligations L/C Exposure shall be payable payable, on a pro rata basis, to the applicable LC Issuer Issuing Banks until each such Defaulting Bank’s Pro Rata Share of the LC Obligation L/C Exposure is cash collateralized and/or reallocated; and.
(dg) so So long as any such Bank is a Defaulting Bank, no LC Issuer Swingline Banks shall be required to issue fund any Swingline Loan and the Issuing Banks shall not be required to issue, amend or Modify increase any Facility LCLetter of Credit, unless it unless, in each case, the applicable Swingline Bank or Issuing Bank is satisfied that the related exposure will be 100% covered by the Commitments non-Defaulting Banks, cash collateral provided pursuant to clause fifth of Section 5.19(h) below and/or cash collateral provided by any Borrower in accordance with Section 5.19(c).
(h) Any payment of principal, interest, fees or other amounts received by the Administrative Agent hereunder for the account of such Defaulting Bank (whether voluntary or mandatory, at maturity, pursuant to Article IX or otherwise) or received by the Administrative Agent from a Defaulting Bank pursuant to Section 11.05 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 Bank to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Bank to any Swingline Bank or Issuing Bank hereunder; third, to cash collateralize the Issuing Banks’ exposure with respect to such Defaulting Bank; fourth as the Borrowers may request (so long as no Event of Default or Unmatured Event of Default exists), to the funding of any Advance in respect of which such Defaulting Bank has failed to fund its portion thereof as required by this Agreement; 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 Bank’s potential future funding obligations with respect to Advances under this Agreement and (y) cash collateralize the Issuing Banks’ future exposure with respect to such Defaulting Bank with respect to future Letters of Credit issued under this Agreement; sixth, to the payment of any amounts owing to the Banks, the Swingline Banks or the Issuing Banks as a result of any judgment of a court of competent jurisdiction obtained by any Bank, the Swingline Banks or the Issuing Banks against such Defaulting Bank as a result of such Defaulting Bank’s breach of its obligations under this Agreement; seventh, so long as no Event of Default or Unmatured 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 Bank as a result of such Defaulting Bank’s breach of its obligations under this Agreement; and eighth, to such Defaulting Bank 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 Bank has not fully funded its proportionate 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 6.02 were satisfied or waived, such payment shall be applied solely to pay the Advances of, and Reimbursement Obligations owed to, all non-Defaulting Banks and/or cash collateral will be provided on a pro rata basis prior to being applied to the payment of any Advances of, or Reimbursement Obligations owed to, such Defaulting Bank until such time as all Advances and funded and unfunded participations in L/C Obligations and Swingline Loans are held by the Company Banks pro rata in accordance with clause the Commitments without giving effect to Section 5.19(c). Any payments, prepayments or other amounts paid or payable to a Defaulting Bank that are applied (cor held) aboveto pay amounts owed by a Defaulting Bank shall be deemed paid to and redirected by such Defaulting Bank, and participating interests in any such newly issued or Modified Facility LC shall be allocated among non-Defaulting Banks in a manner consistent with clause(c)(i) above (and Defaulting Banks shall not participate therein)each Bank irrevocably consents hereto.
(e) If (i) a Bankruptcy Event with respect to a Parent of any Bank shall occur following the date hereof and for so long as such event shall continue or (ii) any LC Issuer has a good faith belief that any Bank has defaulted in fulfilling its obligations under one or more other agreements in which such Bank commits to extend credit, such LC Issuer shall not be required to issue, amend or increase any Facility LC, unless such LC Issuer, as the case may be, shall have entered into arrangements with the Company or such Bank, satisfactory to such LC Issuer, as the case may be, to defease any risk to it in respect of such Bank hereunder.
(f) In the event that the Administrative Agent, the CompanyBorrowers, each Swingline Bank and each LC Issuer each agrees Issuing Bank agree that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the Banks’ Pro Rata Shares of the LC Obligations Aggregate Revolving Credit Exposure shall be readjusted to reflect the inclusion of such Bank’s Commitment and on such date such Bank shall purchase at par such of the Loans Advances of the other Banks (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Bank to hold such Loans Advances in accordance with its Pro Rata Share Applicable Percentage.
(j) The Borrowers may terminate the unused amount of the Aggregate Commitment; providedCommitment of any Bank that is a Defaulting Bank upon not less than three Business Days’ prior notice to the Administrative Agent (which shall promptly notify the Banks thereof), that if and in such event the Company cash collateralized any portion provisions of Section 5.19(c) will apply to all amounts thereafter paid by the Borrowers for the account of such Defaulting Bank under this Agreement (whether on account of principal, interest, fees, indemnity or other amounts); provided that (i) no Event of Default shall have occurred and be continuing, and (ii) such termination shall not be deemed to be a waiver or release of any claim any Borrower, the Administrative Agent, any Issuing Bank’s Pro Rata Share of the LC Obligations pursuant to Section 4.7(c), any Swingline Bank or any Bank may have against such cash shall be returned to the CompanyDefaulting Bank.
Appears in 1 contract
Defaulting Banks. (a) Notwithstanding any provision of this Agreement to the contrary, if any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(ai) Commitment Fees facility fees shall cease to accrue accrue, or to be payable by the Borrower, on the unfunded portion of the Commitment of such Defaulting Bank pursuant to Section 2.5(a)2.09(a) for the account of such Defaulting Bank or otherwise;
(bii) Letter of Credit Fees shall cease to accrue, or to be payable by the Borrower, on the Pro Rata Share of a Letter of Credit of such Defaulting Bank pursuant to Section 2.09(c) for the account of such Defaulting Bank or otherwise;
(iii) the Commitment and Outstanding or Credit Exposure of such Defaulting Bank shall not be included in determining whether all Banks or the Majority Required Banks have taken or may take any action hereunder (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 10.19.05); provided, thathowever, except as otherwise provided in Section 10.1, that this clause (biii) shall not (subject to Section 9.05) apply to the vote of a Defaulting Bank in the case of an amendment, waiver or other modification specifically requiring the consent of such Bank or each Bank directly affected thereby;thereby (and in circumstances where the consent of “all Banks” is required, such Defaulting Bank’s vote shall not be included except (A) such Defaulting Bank’s Commitment may not be increased or extended without its consent and (B) the principal amount of, or interest or fees payable on, Loans or L/C Borrowings may not be reduced or excused or the scheduled date of payment may not be postponed as to such Defaulting Bank without such Defaulting Bank’s consent); and
(civ) if any LC L/C Obligations exist exists at the time a such Bank becomes a Defaulting Bank then:
(iA) so long as provided that no Default or Event of Default shall be continuing immediately before or after giving effect to such reallocationexists, all or any part of such LC Obligation Defaulting Bank’s Pro Rata Share of the Outstanding Amount of all L/C Obligations shall be reallocated among the non-Defaulting Banks in accordance with their respective Pro Rata Share Shares but only to the extent that (x) the sum aggregate principal amount of Revolving Loans of all non-Defaulting Banks’ Bank’s plus such Defaulting Bank’s Pro Rata Share of the Outstanding Credit Exposure does Amount of all L/C Obligations do not exceed the total of all non-Defaulting Banks’ Commitments, (y) no Bank’s Outstanding Credit Exposure shall exceed its Commitment and (z) the conditions set forth in Section 11.2 are satisfied at such time;
(iiB) if the reallocation described in subclause clause (iA) above cannot, or can only partially, be effected, the Company Borrower shall within one (1) Domestic Business Day following notice by the Agent, cash collateralize Administrative Agent Cash Collateralize for the benefit of the relevant LC Issuer Issuing Bank such Defaulting Bank’s Pro Rata Share of the LC Outstanding Amount of all L/C Obligations (after giving effect to any partial reallocation pursuant to subclause clause (i) above) in accordance with the procedures set forth in Section 9.2 2.20(e)(i) for so long as such LC Obligation is L/C Obligations are outstanding;
(iiiC) if the Company cash collateralizes Borrower Cash Collateralizes any portion of such Defaulting Bank’s Pro Rata Share of the LC L/C Obligations pursuant this to clause (c)B) above, the Company Borrower shall not be required to pay any fees to such Defaulting Bank pursuant to Section 3.4 2.09(c) with respect to such Defaulting Bank’s Pro Rata Share of the LC L/C Obligations during the period such Defaulting Bank’s Pro Rata Share of the LC L/C Obligations is cash collateralizedare Cash Collateralized;
(ivD) if the L/C Obligations of the non-Defaulting Banks’ Pro Rata Share of the LC Obligations is Banks are reallocated pursuant to this clause (c)A) above, then the fees payable to the Banks pursuant to Section 2.5(a2.09(a) and Section 3.4 2.09(c) shall be adjusted in accordance with such non-Defaulting Banks’ Pro Rata Shares; orand
(vE) if all or any portion of such Defaulting Bank’s Pro Rata Share of the LC L/C Obligations is are neither reallocated nor cash collateralized Cash Collateralized pursuant to this clause (c)A) or (B) above, then, without prejudice to any rights or remedies of any LC Issuer the Issuing Bank or any other Bank hereunder, all facility fees that otherwise would have been payable to such Defaulting Bank (solely with respect to the portion of such Defaulting Bank’s Commitment that was utilized by such LC L/C Obligations) and LC Fees letter of credit fees payable under Section 3.4 2.09(c) with respect to such Defaulting Bank’s Pro Rata Share of the LC L/C Obligations shall be payable to the applicable LC Issuer Issuing Bank until and to the extent that such Defaulting Bank’s Pro Rata Share of the LC Obligation is cash collateralized L/C Obligations are reallocated and/or reallocatedCash Collateralized; and
(db) so So long as any Bank is a Defaulting Bank, no LC Issuer the Issuing Bank shall not be required to issue issue, amend or Modify increase any Facility LCLetter of Credit, unless it is satisfied that the Defaulting Bank's related exposure and its then outstanding L/C Advance will be 100% covered in accordance with the terms of this Agreement by the Commitments of the non-Defaulting Banks and/or cash collateral will be provided by the Company Borrower in accordance with clause (c) aboveSection 2.19(a)(iv), and participating interests in any such newly issued or Modified Facility LC increased Letter of Credit shall be allocated among non-Defaulting Banks in a manner consistent with clause(c)(iSection 2.19(a)(iv)(A) above (and such Defaulting Banks Bank shall not participate therein).
(e) If (i) a Bankruptcy Event with respect to a Parent of any Bank shall occur following the date hereof and for so long as such event shall continue or (ii) any LC Issuer has a good faith belief that any Bank has defaulted in fulfilling its obligations under one or more other agreements in which such Bank commits to extend credit, such LC Issuer shall not be required to issue, amend or increase any Facility LC, unless such LC Issuer, as the case may be, shall have entered into arrangements with the Company or such Bank, satisfactory to such LC Issuer, as the case may be, to defease any risk to it in respect of such Bank hereunder.
(f) . In the event that the Administrative Agent, the CompanyBorrower, and each LC Issuer the Issuing Bank each agrees that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the Banks’ Pro Rata Shares L/C Obligations of the LC Obligations Banks shall be readjusted to reflect the inclusion of such Bank’s Commitment and on such date such Bank shall purchase at par such of the Loans of the other Banks as the Administrative Agent shall determine may be necessary in order for such Bank to hold such Loans in accordance with its Pro Rata Share Share.
(c) At the Borrower’s option, the Borrower may elect to terminate the Commitment of any Defaulting Bank upon notice to such Defaulting Bank and the Aggregate CommitmentAdministrative Agent (irrespective of whether such Defaulting Bank holds any outstanding Loans) and such notice shall be effective upon receipt by both the Defaulting Bank and the Administrative Agent; providedprovided that, that for the avoidance of doubt, if such Defaulting Bank holds any Loans, and such Loans are not assigned pursuant to Section 2.18 or otherwise, then such Defaulting Bank shall continue to hold such Loans until such time as such Loans are repaid by the Company cash collateralized Borrower or assigned pursuant to this Agreement. Upon termination of a Bank’s Commitment under this Section 2.19, the Borrower shall (x) to the extent applicable after giving effect to Section 2.19(a)(iv) and any portion of Cash Collateral provided by the Defaulting Bank, Cash Collateralize such Defaulting Bank’s Pro Rata Share of the LC Obligations pursuant aggregate undrawn amount of all outstanding Letters of Credit, (y) subject to Section 4.7(c2.19(a), pay or cause to be paid all accrued facility fees or Letter of Credit Fees payable to such cash Bank and all other amounts due and payable to such Bank hereunder and (z) if such Bank is an Issuing Bank, the Borrower shall be returned pay to the CompanyAdministrative Agent for deposit an amount equal to the available amount of all Letters of Credit issued by such Issuing Bank, and upon such payments, the obligations of such Bank hereunder with respect to such unused Commitment which have been terminated shall, by the provisions hereof, be released and discharged.
Appears in 1 contract
Sources: Revolving Credit Agreement (National Rural Utilities Cooperative Finance Corp /Dc/)
Defaulting Banks. Notwithstanding any provision of this Agreement to the contrary, if any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Commitment Fees 2.22.1. The Unused Portion Fee shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Bank pursuant to Section 2.5(a);2.9.
(b) the 2.22.2. The Commitment and Outstanding Credit Exposure of such Defaulting Bank shall not be included in determining whether all Banks or the Majority Banks have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.111.1); provided, thatprovided that any waiver, except as otherwise provided in Section 10.1, this clause (b) shall not apply to the vote of a Defaulting Bank in the case of an amendment, waiver amendment or other modification requiring the consent of such Bank all Banks or each affected Bank directly which affects such Defaulting Bank differently than any other affected thereby;Bank shall require the consent of such Defaulting Bank.
(c) if 2.22.3. If any LC Swing Line Loans or L/C Obligations exist or are outstanding at the time a Bank becomes a Defaulting Bank Bank, then:
(ia) so long as no Default or Event of Default shall be continuing immediately before or after giving effect to such reallocation, all or any part of such LC Obligation Defaulting Bank’s share of participations in such Swing Line Loans and L/C Obligations shall be reallocated among the non-Defaulting Banks in accordance with their respective Pro Rata Share Shares, but only to the extent that (x) the sum of all non-Defaulting Banks’ Outstanding Bank’s Revolving Credit Exposure Exposures plus such Defaulting Bank’s share of participations in such Swing Line Loans and L/C Obligations does not exceed the total of all non-Defaulting Banks’ Commitments, Commitments and (y) no Bank’s Outstanding Credit Exposure shall exceed its Commitment and (z) the conditions set forth in Section 11.2 3.2 are satisfied at such time;
(iib) if the reallocation described in subclause clause (ia) above cannot, not be effected or can only partially, partially be effected, the Company Borrower shall within one (1) Business Day following notice by the AgentAdministrative Agent (x) first, prepay such Swing Line Loans and (y) second, cash collateralize for the benefit of the relevant LC Issuer such Defaulting Bank’s Pro Rata Share share of the LC outstanding L/C Obligations (after giving effect to any partial reallocation pursuant to subclause clause (ia) above) in accordance with the procedures set forth in Section 9.2 for so long as such LC Obligation is L/C Obligations are outstanding;
(iiic) if the Company Borrower cash collateralizes any portion of such Defaulting Bank’s Pro Rata Share share of the LC outstanding L/C Obligations pursuant to this clause (c)Section 2.22.3, the Company Borrower shall not be required to pay any fees with respect to such Defaulting Bank pursuant to Section 3.4 with respect to such Defaulting Bank’s Pro Rata Share of the LC Obligations 2.2.4 during the period such Defaulting Bank’s Pro Rata Share share of the LC outstanding L/C Obligations is cash collateralized;
(ivd) if the share of the outstanding L/C Obligations of the non-Defaulting Banks’ Pro Rata Share of the LC Obligations Bank is reallocated pursuant to this clause (c)Section 2.22.3, then the fees payable to the Banks pursuant to Section 2.5(a) 2.2.4 and Section 3.4 2.9 shall be adjusted in accordance with such non-Defaulting Banks’ Pro Rata Shares; orand
(ve) if any Defaulting Bank’s Pro Rata Share share of the LC outstanding L/C Obligations is neither reallocated nor cash collateralized nor reallocated pursuant to this clause (c)Section 2.22.3, then, without prejudice to any rights or remedies of any LC Issuer or the L/C Issuer, any Bank or the Borrower hereunder, all fees Unused Portion Fee that otherwise would have been payable to such Defaulting Bank (solely with respect to the portion of such Defaulting Bank’s Revolving Commitment that was utilized by such LC outstanding L/C Obligations) and LC Fees letter of credit fees payable under Section 3.4 2.2.4 with respect to such Defaulting Bank’s Pro Rata Share of the LC Obligations Bank shall be payable to the applicable LC Issuer Issuing Bank until such Defaulting Bank’s Pro Rata Share of the LC Obligation share is cash collateralized and/or reallocated; and.
(d) so 2.22.4. So long as any Bank is a Defaulting Bank, no LC Issuer the Swing Line Lender shall not be required to issue fund any Swing Line Loan and the L/C Issuer shall not be required to issue, amend or Modify increase any Facility LCLetter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Banks and/or cash collateral will be provided by the Company Borrower in accordance with clause (c) aboveSection 2.22.3), and participating interests in any such newly issued or Modified Facility LC increased Letter of Credit or newly made Swing Line Loan shall be allocated among non-Defaulting Banks in a manner consistent with clause(c)(i) above Section 2.22.3 (and the Defaulting Banks Bank shall not participate therein).
(e) 2.22.5. If any Defaulting Bank shall fail to make any payment required to be made by it pursuant to this Agreement, then the Administrative Agent may, in its discretion and notwithstanding any contrary provision hereof, (i) a Bankruptcy Event with respect apply any amounts thereafter received by the Administrative Agent for the account of such Defaulting Bank to a Parent of any Bank shall occur following the date hereof and for so long as satisfy such event shall continue or Defaulting Bank’s funding obligations hereunder until all such unsatisfied obligations are fully paid, and/or (ii) hold any LC Issuer has such amounts in a good faith belief that segregated account as cash collateral for, and application to, any Bank has defaulted in fulfilling its future funding obligations under one or more other agreements in which such Bank commits to extend credit, such LC Issuer shall not be required to issue, amend or increase any Facility LC, unless such LC Issuer, as the case may be, shall have entered into arrangements with the Company or such Bank, satisfactory to such LC Issuer, as the case may be, to defease any risk to it in respect of such Bank hereunder.
(f) Defaulting Bank. In the event that the Administrative Agent, the CompanyBorrower, the L/C Bank and each LC Issuer the Swing Line Lender each agrees that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the Banks’ Pro Rata Shares participations of the LC Banks in all outstanding Swing Line Loans and L/C Obligations shall be readjusted to reflect the inclusion of such Bank’s Revolving Credit Commitment and on such date such Bank shall purchase at par such of the Revolving Credit Loans of the other Banks (other than Swing Line Loans) as the Administrative Agent shall determine may be necessary in order for such Bank to hold such Revolving Credit Loans in accordance with its Pro Rata Share of the Aggregate Commitment; provided, that if the Company cash collateralized any portion of such Defaulting Bank’s Pro Rata Share of the LC Obligations pursuant to Section 4.7(c), such cash shall be returned to the CompanyShare.
Appears in 1 contract
Sources: Credit Agreement (Saia Inc)
Defaulting Banks. (a) Notwithstanding any provision of this Agreement to the contrary, if one or more Banks become Defaulting Banks, then, upon notice to such effect by the Administrative Agent (which notice shall be given promptly after the Administrative Agent becomes aware that any Bank becomes shall have become a Defaulting Bank, then including as a result of being advised thereof by any Issuing Bank or the Lead Borrower), the following provisions shall apply for so long as any such Bank is a Defaulting Bank:
(ai) Commitment Fees no commitment fee shall cease to accrue on the unfunded portion unused amount of the any Commitment of such any Defaulting Bank pursuant to Section 2.5(a2.8(a);
(bii) the Commitment and Outstanding Credit Revolving Exposure of such each Defaulting Bank shall not be included disregarded in determining whether the Majority requisite Banks shall have taken or may take any action hereunder or under any other Loan Document (including any consent to any waiver, amendment or waiver other modification pursuant to Section 10.19.5); provided that any waiver, amendment, or other modification that, disregarding the effect of this clause (ii), requires the consent of each Bank directly affected thereby pursuant to clause (a), (b) or (c) of Section 9.5 shall continue to require the consent of each Defaulting Bank directly affected thereby in accordance with the terms hereof; provided, thatfurther, except as otherwise provided in that any waiver, amendment or other modification of this Section 10.12.20(a)(ii) or clause (a), this clause (b) shall not apply to the vote or (c) of Section 9.5 at any time that a Bank is a Defaulting Bank in the case of an amendment, waiver or other modification requiring shall require the consent of such Defaulting Bank or each if such Defaulting Bank would be directly adversely affected thereby;
(ciii) if any LC Obligations exist Exposure exists at the time a any Bank becomes a Defaulting Bank (each Letter of Credit to which such LC Exposure is attributable being referred to as a “Reallocated Letter of Credit”), then:
(iA) so long as no Default or Event subject to clause (B) below, the participation of Default each Non-Defaulting Bank in each Reallocated Letter of Credit shall be continuing immediately before adjusted to be determined under Section 2.18(d) on the basis of such Bank’s Adjusted Applicable Percentage (and all references in Section 2.18 to “Applicable Percentage” shall be deemed to be references to “Adjusted Applicable Percentage”);
(B) notwithstanding the foregoing:
(1) if any Bank that becomes a Defaulting Bank shall be an Issuing Bank or an Affiliate thereof, no adjustment shall be made pursuant to clause (A) above with respect to participations in any Letter of Credit issued by such Issuing Bank;
(2) if all the Defaulting Banks’ Applicable Percentage of the LC Exposure attributable to the Reallocated Letters of Credit (the “Defaulting Bank LC Exposure”) exceeds the unused portion of the Commitments of the Non-Defaulting Banks as of the time the adjustments are to be made pursuant to clause (A) above (such unused portion being referred to as the “Maximum Incremental Participation Amount”), then the incremental amount of participations acquired by the Non-Defaulting Banks under clause (A) above (the “Incremental LC Participations”) shall not exceed at any time the Maximum Incremental Participation Amount;
(3) adjustments under Section 2.20(a)(iii)(A) and (B) above shall only be made to the extent that, after giving effect to such reallocationadjustments, all the Revolving Exposure of any Non-Defaulting Bank shall not exceed its Commitment; and
(4) no adjustment shall be made under Section 2.20(a)(iii)(A) or (B) above if, at the time such adjustment is made, an Event of Default has occurred and is continuing;
(C) if the Defaulting Bank LC Exposure exceeds the Maximum Incremental Participation Amount, then the applicable Borrower or applicable Additional Borrower shall, within five Domestic Business Days after receipt of written notice to that effect from the Administrative Agent, cash collateralize the Reallocated Letters of Credit (in a manner and under documentation reasonably satisfactory to the Administrative Agent) in an aggregate amount equal to the excess, if any, of the Defaulting Bank LC Exposure over the Maximum Incremental Participation Amount or, if agreed to by the applicable Issuing Bank, enter into other arrangements with respect to the Reallocated Letters of Credit on terms mutually agreed between such Issuing Bank and the applicable Borrower or applicable Additional Borrower;
(D) if any part Reallocated Letter of Credit shall have been cash collateralized by the applicable Borrower or applicable Additional Borrower pursuant to clause (C) above, then (x) the applicable Borrower or applicable Additional Borrower shall not be required to pay any letter of credit participation fees pursuant to Section 2.8(b) with respect to the portion of such LC Obligation Reallocated Letter of Credit that is so cash collateralized and (y) to the extent any letter of credit participation fees are not required to be paid by reason of clause (x) above, the reduction in the amount of such fees shall be reallocated among allocated to the nonDefaulting Banks;
(E) if an adjustment shall have been made pursuant to clause (A) above to the participations of the Non-Defaulting Banks in Reallocated Letters of Credit, then the letter of credit participation fees that would otherwise have been payable to the Banks that are Defaulting Banks pursuant to Section 2.8(b) with respect to the portion of such Reallocated Letters of Credit equal to the Incremental LC Participations therein shall instead accrue for the accounts of, and be payable to, the Banks that are Non-Defaulting Banks in accordance with their respective Pro Rata Share but only to Adjusted Applicable Percentages;
(F) if the extent that (x) Defaulting Bank LC Exposure at any time shall exceed the sum of all non-Defaulting Banks’ Outstanding Credit Exposure does not exceed the total of all non-Defaulting Banks’ Commitments, (y) no Bank’s Outstanding Credit Exposure shall exceed its Commitment and (z) the conditions set forth in Section 11.2 are satisfied Incremental LC Participations at such time;
(ii) if time and the reallocation described in subclause (i) above cannot, or can only partially, be effected, the Company shall within one (1) Business Day following notice by the Agent, cash collateralize for the benefit portion of the relevant LC Issuer Reallocated Letters of Credit cash collateralized at such Defaulting Bank’s Pro Rata Share of the LC Obligations (after giving effect to any partial reallocation time pursuant to subclause clause (iC) above) in accordance with the procedures set forth in Section 9.2 for so long as such LC Obligation is outstanding;
(iii) if the Company cash collateralizes any portion of such Defaulting Bank’s Pro Rata Share of the LC Obligations pursuant this clause (c), the Company shall not be required to pay any fees to such Defaulting Bank pursuant to Section 3.4 with respect to such Defaulting Bank’s Pro Rata Share of the LC Obligations during the period such Defaulting Bank’s Pro Rata Share of the LC Obligations is cash collateralized;
(iv) if the non-Defaulting Banks’ Pro Rata Share of the LC Obligations is reallocated pursuant to this clause (c), then the fees payable to the Banks pursuant to Section 2.5(a) and Section 3.4 shall be adjusted in accordance with such non-Defaulting Banks’ Pro Rata Shares; or
(v) if any Defaulting Bank’s Pro Rata Share of the LC Obligations is neither reallocated nor cash collateralized pursuant to this clause (c), then, without prejudice to any rights or remedies of any LC Issuer Issuing Bank or any Non-Defaulting Bank hereunder, all letter of credit participation fees that otherwise would have been payable to such the Banks that are Defaulting Bank (solely Banks under Section 2.8(b) with respect to the portion of such the Defaulting Bank’s Commitment that was utilized by such Bank LC Obligations) and LC Fees payable under Section 3.4 with respect Exposure equal to such Defaulting Bank’s Pro Rata Share of excess shall instead accrue for the LC Obligations shall account of, and be payable to to, the applicable LC Issuer until such Defaulting Bank’s Pro Rata Share Issuing Bank that shall have issued the Reallocated Letters of the LC Obligation is cash collateralized and/or reallocatedCredit; and
(dG) so long the Revolving Exposure of each Non-Defaulting Bank shall be determined after giving effect to the Incremental LC Participations acquired by such Bank under the foregoing clauses of this clause (iii);
(iv) in the event any Letter of Credit shall be issued or amended to increase the amount thereof, (A) the participations of the Non-Defaulting Banks therein shall be determined in the manner set forth in clause (iii)(A) above, as if such Letter of Credit shall have been a Reallocated Letter of Credit, and (B) letter of credit participation fees that would otherwise have been payable to the Banks that are Defaulting Banks pursuant to Section 2.8(b) in respect of any Bank is a Defaulting Banksuch Letter of Credit shall be subject to clause (iii)(E) above; provided, however, that, notwithstanding anything to the contrary set forth herein, no LC Issuer Issuing Bank shall be required to issue issue, extend, renew or Modify increase the amount of any Facility LC, Letter of Credit unless it is satisfied that the related exposure Defaulting Banks’ Applicable Percentage of the LC Exposure attributable to such Letter of Credit will be 100% entirely covered by the Commitments participations therein of the nonNon-Defaulting Banks and/or cash collateral will be or other arrangements satisfactory to such Issuing Bank provided by the Company in accordance with clause applicable Borrower or applicable Additional Borrower (c) above, and participating interests in any such newly issued or Modified Facility LC shall be allocated among non-Defaulting Banks in a manner consistent with clause(c)(i) above (and Defaulting Banks shall not participate therein).
(e) If (i) a Bankruptcy Event with respect to a Parent of any Bank shall occur following the date hereof and for so long as such event shall continue or (ii) any LC Issuer has a good faith belief that any Bank has defaulted in fulfilling its obligations under one or more other agreements in which such Bank commits to extend credit, such LC Issuer shall not be required to issue, amend or increase any Facility LC, unless such LC Issuer, as the case may be, shall have entered into arrangements with the Company or such Bank, documentation satisfactory to such LC IssuerIssuing Bank); and
(v) any amount payable to or for the account of any Defaulting Bank in its capacity as a Bank hereunder (whether on account of principal, interest, fees or otherwise, and including any amounts payable to such Defaulting Bank pursuant to Sections 2.10 and 2.11, but excluding any amounts payable to such Defaulting Bank pursuant to Sections 2.13, 2.15, 2.17, 8.3 and 9.3) shall, in lieu of being distributed to such Defaulting Bank, be retained by the Administrative Agent in a segregated account and, subject to any applicable requirements of law, (A) be applied, at such time or times as may be determined by the case may beAdministrative Agent, (1) first, to defease the payment of any risk amounts owing by such Defaulting Bank to it the Administrative Agent hereunder, (2) second, to the payment of any amounts owing by such Defaulting Bank to each Issuing Bank in respect of such Defaulting Bank’s participations in Letters of Credit (and to the extent any such amounts shall have been paid by Non-Defaulting Banks as a result of adjustments pursuant to clause (iii) above, to reimburse such Non-Defaulting Banks for such amounts), (3) third, to cash collateralize participation obligations of such Defaulting Bank in respect of outstanding Letters of Credit (with the concurrent release of an equivalent amount any cash collateral or other collateral security, if any, provided by the applicable Borrower pursuant to this Section) and (4) fourth, to the funding of such Defaulting Bank’s Applicable Percentage of any Borrowing in respect of which such Defaulting Bank shall have failed to fund such share as required hereunder, (B) to the extent not applied as aforesaid, be held, if so determined by the Administrative Agent, as cash collateral for funding obligations of such Defaulting Bank in respect of future Loans hereunder, (C) to the extent not applied or held as aforesaid, be applied, pro rata, to the payment of any amounts owing to any Borrower or the Non-Defaulting Banks as a result of any judgment of a court of competent jurisdiction obtained by any Borrower or any Non-Defaulting Bank against such Defaulting Bank as a result of such Defaulting Bank’s breach of its obligations hereunder and (D) to the extent not applied or held as aforesaid, be distributed to such Defaulting Bank or as otherwise directed by a court of competent jurisdiction.
(fb) In the event that the Administrative Agent, the Company, Issuing Banks and each LC Issuer each agrees the Borrowers shall have agreed that a Bank that is a Defaulting Bank has adequately remedied all matters that caused such Bank to be become a Defaulting Bank, then (i) such Bank shall cease to be a Defaulting Bank for all purposes hereof, (ii) the Banks’ Pro Rata Shares obligations of the LC Obligations Banks to purchase participations in Letters of Credit under Section 2.18(d) shall be readjusted to reflect be determined on the inclusion basis of such Bank’s Commitment Banks’ Applicable Percentages and on such date (iii) such Bank shall purchase at par such of the Loans of the other Banks as the Administrative Agent shall determine may to be necessary in order for such Bank the Loans to hold such Loans be held by the Banks in accordance with their Applicable Percentages.
(c) No Commitment of any Bank shall be increased or otherwise affected and, except as otherwise expressly provided in this Section, performance by any Borrower and any Additional Borrower of its Pro Rata Share obligations hereunder and under the other Loan Documents shall not be excused or otherwise modified as a result of the Aggregate Commitment; providedoperation of this Section. The rights and remedies against a Defaulting Bank under this Section are in addition to other rights and remedies that any Borrower, that if any Additional Borrower, the Company cash collateralized Administrative Agent, the Issuing Banks or any portion of Non-Defaulting Bank may have against such Defaulting Bank’s Pro Rata Share Bank (and, for the avoidance of doubt, each Non-Defaulting Bank shall have a claim against any Defaulting Bank for any losses it may suffer as a result of the LC Obligations pursuant to Section 4.7(coperation of this Section), such cash shall be returned to the Company.
Appears in 1 contract
Defaulting Banks. Notwithstanding any provision of this Agreement to the contrary, if any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Commitment Fees shall cease to accrue on the unfunded portion If any Letters of the Commitment of such Defaulting Bank pursuant to Section 2.5(a);
(b) the Commitment and Outstanding Credit Exposure of such Defaulting Bank shall not be included in determining whether the Majority Banks have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.1); provided, that, except as otherwise provided in Section 10.1, this clause (b) shall not apply to the vote of a Defaulting Bank in the case of an amendment, waiver or other modification requiring the consent of such Bank or each Bank directly affected thereby;
(c) if any LC Obligations exist are outstanding at the time a Bank becomes a Defaulting Bank Bank, and the Commitments have not been terminated in accordance with Section 8.01, then:
(i) so long as no Default or Event of Default shall be continuing immediately before or after giving effect to such reallocationhas occurred and is continuing, all or any part of such LC Obligation the participations in outstanding Letters of Credit shall be reallocated among the nonBanks that are Non-Defaulting Banks in accordance with their respective Pro Rata Share Applicable Percentages (disregarding any Defaulting Bank's Commitment) but only to the extent that (x) the sum of (A) the aggregate principal amount of all nonAdvances made by the Non-Defaulting Banks (in their capacity as Banks) and outstanding at such time, plus (B) the Non-Defaulting Banks’ Outstanding Credit Exposure ' aggregate LC Exposures, plus (C) such Defaulting Bank's LC Exposure, does not exceed the total of all nonNon-Defaulting Banks’ ' Commitments, (y) no Bank’s Outstanding Credit Exposure shall exceed its Commitment and (z) the conditions set forth in Section 11.2 are satisfied at such time;
(ii) if the reallocation described in subclause clause (i) above cannot, or can only partially, be effected, the Company shall within one (1) Business Day following notice by the Agentany Issuing Bank, cash collateralize for the benefit of the relevant LC Issuer such Defaulting Bank’s Pro Rata Share of the 's LC Obligations Exposure (after giving effect to any partial reallocation pursuant to subclause clause (i) above) by paying cash collateral to such Issuing Bank; provided that, so long as no Default is continuing, such cash collateral shall be released promptly upon the earliest of (A) the reallocation of the LC Exposure of the Defaulting Bank to Non-Defaulting Banks in accordance with clause (i) above, (B) a reduction in the procedures set forth outstanding amount available to be drawn under all outstanding Letters of Credit to zero, (C) the termination of the Defaulting Bank status of the applicable Bank, (D) such Issuing Bank's good faith determination that there exists excess cash collateral (in which case, an amount equal to such excess cash collateral shall be released) or (E) the posting of cash collateral for the amount of a Defaulting Bank as contemplated by Section 9.2 for so long as 2.07(g). In the event any Letter of Credit or a portion thereof is collateralized, no fees shall be payable by the Company on the collateralized amount of such LC Obligation is outstandingLetter of Credit or a portion thereof;
(iii) if to the Company cash collateralizes any portion extent the Applicable Percentages of such Defaulting Bank’s Pro Rata Share Letters of Credit of the LC Obligations pursuant this clause (c), the Company shall not be required to pay any fees to such Defaulting Bank pursuant to Section 3.4 with respect to such Defaulting Bank’s Pro Rata Share of the LC Obligations during the period such Defaulting Bank’s Pro Rata Share of the LC Obligations is cash collateralized;
(iv) if the nonNon-Defaulting Banks’ Pro Rata Share of the LC Obligations is Banks are reallocated pursuant to this clause (cSection 2.07(a), then the fees payable to the Banks pursuant to Section 2.5(a4.01(b)(i) and Section 3.4 shall be adjusted in accordance with such nonthe Non-Defaulting Banks’ Pro Rata Shares' Applicable Percentages of Letters of Credit as reallocated; or
(viv) if to the extent any Defaulting Bank’s Pro Rata Share 's Applicable Percentage of the LC Obligations Letters of Credit is neither reallocated nor cash collateralized nor reallocated pursuant to this clause (cSection 2.07(a), then, without prejudice to any rights or remedies of any LC Issuer Issuing Bank or any Bank hereunder, all letter of credit fees that otherwise would have been payable to such Defaulting Bank (solely with respect to the portion of such Defaulting Bank’s Commitment that was utilized by such LC Obligations) and LC Fees payable under Section 3.4 4.01(b)(i) with respect to such Defaulting Bank’s Pro Rata Share 's Applicable Percentage of the LC Obligations Letters of Credit that has not been reallocated or collateralized shall be payable to the applicable LC Issuer Issuing Bank until such Defaulting Bank’s Pro Rata Share 's Applicable Percentage of the LC Obligation is Letters of Credit has been fully cash collateralized and/or reallocated; and.
(db) so So long as any Bank is a Defaulting Bank, no LC Issuer Issuing Bank shall be required to issue issue, amend or Modify increase any Facility LCLetter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the nonNon-Defaulting Banks and/or cash collateral will be provided by the Company in accordance with clause (cSection 2.07(a) aboveor provided in accordance with Section 2.07(g), and participating interests in any such newly issued issued, amended or Modified Facility LC increased Letter of Credit shall be allocated among nonNon-Defaulting Banks in a manner consistent with clause(c)(iSection 2.07(a)(i) above (and Defaulting Banks shall not participate therein).
(ec) If (i) a Bankruptcy Event with respect to a Parent No Commitment of any Bank shall occur following be increased or otherwise affected, and, except as otherwise expressly provided in this Section 2.07, performance by the date hereof and for so long as such event shall continue or (ii) any LC Issuer has a good faith belief that any Bank has defaulted in fulfilling Company of its obligations under one or more other agreements in which such Bank commits to extend credit, such LC Issuer shall not be required excused or otherwise modified as a result of the operation of this Section 2.07. The rights and remedies against a Defaulting Bank under this Section 2.07 are in addition to issueany other rights and remedies which the Company, amend the Administrative Agent, any Bank or increase any Facility LC, unless Issuing Bank may have against such LC Issuer, as the case may be, shall have entered into arrangements with the Company or such Defaulting Bank, satisfactory to such LC Issuer, as the case may be, to defease any risk to it in respect of such Bank hereunder.
(d) [Reserved].
(e) [Reserved].
(f) In the event that the Agent, If the Company, the Administrative Agent and each LC Issuer each agrees Issuing Bank agree in writing in their reasonable determination that a Defaulting Bank has adequately remedied all matters that caused such Bank should no longer be deemed to be a Defaulting Bank, then the Banks’ Pro Rata Shares Administrative Agent will so notify the parties hereto, whereupon as of the LC Obligations shall be readjusted effective date specified in such notice and subject to reflect any conditions set forth therein (which may include arrangements with respect to any cash collateral), that Bank will, to the inclusion extent applicable, purchase, at par, that portion of such Bank’s Commitment and on such date such Bank shall purchase at par such of the Loans outstanding Advances of the other Banks or take such other actions as the Administrative Agent shall may determine may to be necessary to cause the Advances and funded and unfunded participations in order for such Bank Letters of Credit to hold such Loans be held on a pro rata basis by the Banks in accordance with its Pro Rata Share their Applicable Percentages (without giving effect to Section 2.07(a)), whereupon such Bank will cease to be a Defaulting Bank; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Aggregate CommitmentCompany while that Bank was a Defaulting Bank; and provided, further, that if except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Bank to Non-Defaulting Bank will constitute a waiver or release of any claim of any party hereunder arising from such Bank's having been a Defaulting Bank.
(g) Notwithstanding anything to the contrary contained in this Agreement, any payment of principal, interest, commitment fees, Letter of Credit commissions or other amounts received by the Administrative Agent for the account of any Defaulting Bank under this Agreement (whether voluntary or mandatory, at maturity, pursuant to Article VIII 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 Bank to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Bank to any Issuing Bank hereunder; third, as the Company may request (so long as no Default exists), to the funding of any Advance in respect of which that Defaulting Bank has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fourth, as the Company may request, to be held in a cash collateralized collateral account to cash collateralize such Defaulting Bank's participations in Letters of Credit that are then outstanding; fifth, if so determined by the Administrative Agent and the Company, to be held in a cash collateral account and released in order to satisfy obligations of such Defaulting Bank to fund Advances under this Agreement; sixth, if so determined by the Administrative Agent and the Company, to be held in a cash collateral account to cash collateralize such Defaulting Bank's participations in Letters of Credit, seventh, to the payment of any portion amounts owing to the Banks or the Issuing Banks as a result of any judgment of a court of competent jurisdiction obtained by any Bank or Issuing Bank against such Defaulting Bank as a result of such Defaulting Bank’s Pro Rata Share 's breach of its obligations under this Agreement; eighth, 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 Bank as a result of such Defaulting Bank's breach of its obligations under this Agreement; and ninth, to such Defaulting Bank or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the LC Obligations pursuant to Section 4.7(c)principal amount of any Advance in respect of which such Defaulting Bank 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 applicable conditions set forth in Article V were satisfied or waived, such payment shall be applied solely to pay the Advances of all Non-Defaulting Banks on a pro rata basis prior to being applied to the payment of any Advances of such Defaulting Bank and provided further that any amounts held as cash collateral for funding obligations of a Defaulting Bank shall be returned to such Defaulting Bank upon the Companytermination of this Agreement and the satisfaction of such Defaulting Bank's obligations hereunder. Any payments, prepayments or other amounts paid or payable to a Defaulting Bank that are applied (or held) to pay amounts owed by a Defaulting Bank or to post cash collateral pursuant to this Section 2.07 shall be deemed paid to and redirected by such Defaulting Bank, and each Bank irrevocably consents hereto.
(h) The Commitment, Revolving Credit Exposure and LC Exposure of any Defaulting Bank shall not be included in determining whether the Majority Banks or any other requisite Banks have taken or may take any action hereunder or under any Note (including any consent to any amendment, waiver or other modification pursuant to Section 10.01) except as set forth in Section 10.01.
Appears in 1 contract
Sources: Revolving Credit and Letter of Credit Agreement (Cigna Corp)
Defaulting Banks. Notwithstanding any provision of this Agreement to the contrary, if any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Commitment Fees fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Bank pursuant to Section 2.5(a)3.1;
(b) the Commitment and Outstanding Credit Exposure of such Defaulting Bank shall not be included in determining whether all Banks or the Majority Banks have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.1); provided9.4, thatprovided that any waiver, except as otherwise provided in Section 10.1, this clause (b) shall not apply to the vote of a Defaulting Bank in the case of an amendment, waiver amendment or other modification requiring the consent of such Bank all Banks or each affected Bank directly which affects such Defaulting Bank differently than other affected therebyBank shall require the consent of such Defaulting Bank);
(c) if any LC Letter of Credit Obligations shall exist at the time a Bank becomes a Defaulting Bank then:
(i1) so long as no Default or Event of Default shall be continuing immediately before or after giving effect to such reallocation, all or any part of such LC Obligation the unfunded participations in and commitments with respect to Letters of Credit shall be reallocated among the non-Defaulting Banks in accordance with their respective Pro Pro-Rata Share Shares but only to the extent that (xy) the sum of all non-Defaulting Banks’ Outstanding Credit Exposure plus such Defaulting Bank’s Loans and participations in and commitments with respect to Loans and Letters of Credit does not exceed the total of all non-Defaulting Banks’ Commitments, (y) no Bank’s Outstanding Credit Exposure shall exceed its Commitment Commitments and (z) the conditions set forth in Section 11.2 4 are satisfied at such time;; provided, that the Letter of Credit Fees payable to the Banks shall be determined taking into account such reallocation.
(ii2) if the reallocation described in subclause clause (i1) above cannot, or can only partially, be effected, the Company Borrower shall within one (1) three Business Day Days following notice by the Administrative Agent, cash collateralize for the benefit of the relevant LC Issuer such Defaulting Bank’s Pro Pro-Rata Share of the LC Letter of Credit Obligations (after giving effect to any partial reallocation pursuant to subclause (i) above) in accordance with the procedures set forth in Section 9.2 below for so long as such LC Obligation Exposure is outstanding;
(iii3) if the Company Borrower cash collateralizes any portion of such Defaulting Bank’s Pro Rata Share of the LC Obligations Exposure pursuant this to clause (c)2) above, the Company Borrower shall not be required to pay any fees to such Defaulting Bank pursuant to Section 3.4 2.3(b) with respect to such Defaulting Bank’s Pro Rata Share of the LC Obligations Exposure during the period such Defaulting Bank’s Pro Rata Share of the LC Obligations Exposure is cash collateralized;; and
(iv) if the non-Defaulting Banks’ Pro Rata Share of the LC Obligations is reallocated pursuant to this clause (c), then the fees payable to the Banks pursuant to Section 2.5(a) and Section 3.4 shall be adjusted in accordance with such non-Defaulting Banks’ Pro Rata Shares; or
(v4) if any Defaulting Bank’s Pro Rata Share of the LC Obligations Exposure is neither reallocated nor not cash collateralized pursuant to this clause (c)2) above, then, without prejudice to any rights or remedies of any LC Issuer the Issuing Bank(s) or any Bank hereunder, all fees that otherwise would have been payable to such Defaulting Bank (solely with respect to the portion Letter of such Defaulting Bank’s Commitment that was utilized by such LC Obligations) and LC Credit Fees payable under Section 3.4 2.2(b) with respect to such Defaulting Bank’s Pro Rata Share of the LC Obligations Exposure shall be payable to the applicable LC Issuer Issuing Bank(s) until such LC Exposure is cash collateralized; Subject to Section 3.11, no reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Bank arising from that Bank having become a Defaulting Bank, including any claim of a non-Defaulting Bank as a result of such non-Defaulting Bank’s Pro Rata Share of the LC Obligation is cash collateralized and/or reallocated; andincreased exposure following such reallocation.
(d) so long as any Bank is a Defaulting Bank, no LC Issuer the Issuing Bank(s) shall not be required to issue or Modify modify any Facility LCLetter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Banks and/or cash collateral will be provided by the Company Borrower in accordance with clause (c) above, and participating interests in any such newly issued or Modified Facility LC shall be allocated among non-Defaulting Banks in a manner consistent with clause(c)(i) above (and Defaulting Banks shall not participate thereinSection 3.8(c).; and
(e) If any amount payable to such Defaulting Bank hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Bank pursuant to Section 2.18(b)) shall, in lieu of being distributed to such Defaulting Bank, 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 Bank shall occur following to the date hereof and for so long as such event shall continue or Administrative Agent hereunder, (ii) second, to the payment of any LC Issuer amounts owing by such Defaulting Bank to the Issuing Bank(s), (iii) third, to the funding of any Revolving Credit Loan or the funding or cash collateralization of any participating interest in any Letter of Credit in respect of which such Defaulting Bank has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (iv) fourth, if so determined by the Administrative Agent and the Borrower, held in such account as cash collateral for future funding obligations of the Defaulting Bank under this Agreement, (v) fifth, to the payment of any amounts owing to the Borrower or the Banks as a good faith belief that result of any judgment of a court of competent jurisdiction obtained by the Borrower or any Bank has defaulted in fulfilling against such Defaulting Bank as a result of such Defaulting Bank’s breach of its obligations under one this Agreement, (vi) sixth, if so determined by the Administrative Agent, distributed to the Banks other than the Defaulting Bank until the ratio of the Outstanding Credit Exposure of such Banks to the Aggregate Outstanding Credit Exposure equals such ratio immediately prior to the Defaulting Bank’s failure to fund any portion of any Loans or more other agreements participations in which such Bank commits to extend creditLetters of Credit and (vii) seventh, such LC Issuer shall not be required to issue, amend or increase any Facility LC, unless such LC Issuer, as the case may be, shall have entered into arrangements with the Company or such Bank, satisfactory to such LC Issuer, as the case may be, to defease any risk to it in respect of such Bank hereunder.
(f) In the event that the Agent, the Company, and each LC Issuer each agrees that a Defaulting Bank has adequately remedied all matters that caused such Bank to be or as otherwise directed by a Defaulting Bank, then the Banks’ Pro Rata Shares court of the LC Obligations shall be readjusted to reflect the inclusion of such Bank’s Commitment and on such date such Bank shall purchase at par such of the Loans of the other Banks as the Agent shall determine may be necessary in order for such Bank to hold such Loans in accordance with its Pro Rata Share of the Aggregate Commitmentcompetent jurisdiction; provided, that if such payment is a prepayment of the Company cash collateralized principal amount of any portion Loans or Reimbursement Obligations in respect of draws under Letters of Credit with respect to which the applicable Issuing Bank has funded its participation obligations, such payment shall be applied solely to prepay the Loans of, and Reimbursement Obligations owed to, all Banks that are not Defaulting Banks pro rata prior to being applied to the prepayment of any Loans, or Reimbursement Obligations owed to, any Defaulting Bank’s Pro Rata Share of the LC Obligations pursuant to Section 4.7(c), such cash shall be returned to the Company.
Appears in 1 contract
Sources: Credit Agreement (CERNER Corp)
Defaulting Banks. Notwithstanding any provision of this Agreement to the contrary, if any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Commitment Fees shall cease Notwithstanding anything to accrue on the unfunded portion contrary contained herein, the Maximum Credit Amount of the Commitment of such Defaulting Bank pursuant to Section 2.5(a);
(b) the Commitment and Outstanding Credit Exposure of such a Defaulting Bank shall not be included in determining whether all Banks or the Majority Required Banks have taken or may take any action hereunder (including approval of any redetermination of the Borrowing Base pursuant to Article 4 and any consent to any amendment or waiver pursuant to Section 10.114.2); provided, provided that, except as otherwise provided in Section 10.1any waiver, this clause (b) shall not apply to the vote of a Defaulting Bank in the case of an amendment, waiver amendment or other modification requiring the consent of all Banks or each affected Bank which affects such Defaulting Bank differently than other affected Banks shall require the consent of such Defaulting Bank.
(b) If any Bank shall fail to make any payment referenced in clause (a) or (b) of the definition of “Defaulting Bank”, then the Administrative Agent may, in its discretion and notwithstanding any contrary provision hereof, (i) apply any amounts thereafter received by the Administrative Agent for the account of such Bank and for the benefit of the Administrative Agent or any Letter of Credit Issuer to satisfy such Bank’s obligations hereunder until all such unsatisfied obligations are fully paid, and/or (ii) hold any such amounts in a segregated account as cash collateral for, and application to, any future funding obligations of such Bank hereunder; in the case of each Bank directly affected thereby;of (i) and (ii) above, in any order as determined by the Administrative Agent in its discretion.
(c) if Borrower shall not be obligated to pay the Administrative Agent any LC Obligations exist at Defaulting Bank’s ratable share of the time a fees described in Sections 2.11, 2.12 or 2.13 (notwithstanding anything to the contrary in such sections) for the period commencing on the day such Defaulting Bank becomes a Defaulting Bank then:
(i) so long as no Default or Event of Default shall be and continuing immediately before or after giving effect to such reallocation, all or any part of such LC Obligation shall be reallocated among the non-Defaulting Banks in accordance with their respective Pro Rata Share but only to the extent that (x) the sum of all non-Defaulting Banks’ Outstanding Credit Exposure does not exceed the total of all non-Defaulting Banks’ Commitments, (y) no Bank’s Outstanding Credit Exposure shall exceed its Commitment and (z) the conditions set forth in Section 11.2 are satisfied at such time;
(ii) if the reallocation described in subclause (i) above cannot, or can only partially, be effected, the Company shall within one (1) Business Day following notice by the Agent, cash collateralize for the benefit of the relevant LC Issuer such Defaulting Bank’s Pro Rata Share of the LC Obligations (after giving effect to any partial reallocation pursuant to subclause (i) above) in accordance with the procedures set forth in Section 9.2 for so long as such LC Obligation is outstanding;
(iii) if the Company cash collateralizes any portion of such Defaulting Bank’s Pro Rata Share of the LC Obligations pursuant this clause (c), the Company shall not be required to pay any fees to such Defaulting Bank pursuant to Section 3.4 with respect to such Defaulting Bank’s Pro Rata Share of the LC Obligations during the period such Defaulting Bank’s Pro Rata Share of the LC Obligations is cash collateralized;
(iv) if the non-Defaulting Banks’ Pro Rata Share of the LC Obligations is reallocated pursuant to this clause (c), then the fees payable to the Banks pursuant to Section 2.5(a) and Section 3.4 shall be adjusted in accordance with such non-Defaulting Banks’ Pro Rata Shares; or
(v) if any Defaulting Bank’s Pro Rata Share of the LC Obligations is neither reallocated nor cash collateralized pursuant to this clause (c), then, without prejudice to any rights or remedies of any LC Issuer or any Bank hereunder, all fees that otherwise would have been payable to such Defaulting Bank (solely with respect to the portion of such Defaulting Bank’s Commitment that was utilized by such LC Obligations) and LC Fees payable under Section 3.4 with respect to such Defaulting Bank’s Pro Rata Share of the LC Obligations shall be payable to the applicable LC Issuer until such Defaulting Bank’s Pro Rata Share of the LC Obligation is cash collateralized and/or reallocated; and
(d) so long as any Bank is a Defaulting Bank, no LC Issuer shall be required to issue or Modify any Facility LC, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Banks and/or cash collateral will be provided by the Company in accordance with clause (c) above, and participating interests in any such newly issued or Modified Facility LC shall be allocated among non-Defaulting Banks in a manner consistent with clause(c)(i) above (and Defaulting Banks shall not participate therein).
(e) If (i) a Bankruptcy Event with respect to a Parent of any Bank shall occur following the date hereof and for so long as such event shall continue or (ii) any LC Issuer has a good faith belief that any Bank has defaulted in fulfilling its obligations under one or more other agreements in which such Bank commits to extend credit, such LC Issuer shall not be required to issue, amend or increase any Facility LC, unless such LC Issuer, as the case may be, shall have entered into arrangements with the Company or such Bank, satisfactory to such LC Issuer, as the case may be, to defease any risk to it in respect of such Bank hereunder.
(f) In the event that the Agent, the Company, and each LC Issuer each agrees that a Defaulting Bank has adequately remedied all matters that caused such Bank continues to be a Defaulting Bank, then the Banks’ Pro Rata Shares of the LC Obligations shall be readjusted to reflect the inclusion of such Bank’s Commitment and on such date such Bank shall purchase at par such of the Loans of the other Banks as the Agent shall determine may be necessary in order for such Bank to hold such Loans in accordance with its Pro Rata Share of the Aggregate Commitment; provided, that if the Company cash collateralized any portion of such Defaulting Bank’s Pro Rata Share of the LC Obligations pursuant to Section 4.7(c), such cash shall be returned to the Company.
Appears in 1 contract
Defaulting Banks. Notwithstanding any provision of this Agreement to the contrary, if any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Commitment Fees payable in accordance with Section 2.05(a) shall cease to accrue on the unfunded portion of the Commitment Amount of such Defaulting Bank pursuant to Section 2.5(a)Bank;
(b) the Commitment Amount and Outstanding Credit Exposure of such Defaulting Bank shall not be included in determining whether all Banks or the Majority Required Banks have taken or may take any action hereunder (including any amendment, waiver, or consent to any amendment or waiver pursuant to Section 10.19.01); providedprovided that any waiver, that, except as otherwise provided in Section 10.1, this clause (b) shall not apply to the vote of a Defaulting Bank in the case of an amendment, waiver consent, or other modification requiring that (i) reduces the principal of, or interest on, any reimbursement obligation or any fee or other amount payable to such Defaulting Bank hereunder, (ii) increases such Defaulting Bank's Commitment Amount, (iii) extends the Termination Date, (iv) postpones any date fixed for any payment of principal of, or interest on, any reimbursement obligation, fee or other amount payable to such Defaulting Bank hereunder, or (iv) requires the consent of all Banks or each affected Bank which affects such Defaulting Bank differently than other affected Banks shall, in each case, require the consent of such Bank or each Bank directly affected therebyDefaulting Bank;
(c) if any LC Obligations exist Credit Exposure exists at the time a Bank becomes a Defaulting Bank then:
(i) so long as no Default or Event of Default shall be continuing immediately before or after giving effect to such reallocation, all or any part of such LC Obligation Credit Exposure shall be reallocated among the non-Defaulting Banks in accordance with their respective Pro Rata Share Shares but only to the extent that (x) the sum of all non-Defaulting Banks’ Outstanding ' Credit Exposures plus such Defaulting Bank's Credit Exposure does not exceed the total of all non-Defaulting Banks’ Commitments, ' Commitment Amounts and (y) no Bank’s Outstanding Credit Exposure shall exceed its Commitment and (z) the conditions set forth in Section 11.2 3.02 are satisfied at such time;
(ii) if the reallocation described in subclause clause (i) above cannot, or can only partially, be effected, the Company each Applicant shall within one (1) Business Day following notice by the Agent, Administrative Agent cash collateralize for the benefit of the relevant LC Issuer such Defaulting Bank’s Pro Rata Share of the LC Obligations 's Credit Exposure (after giving effect to any partial reallocation pursuant to subclause clause (i) above) in accordance with a manner satisfactory to the procedures set forth Administrative Agent and the Issuing Bank in Section 9.2 their sole discretion for so long as such LC Obligation Credit Exposure is outstanding;
(iii) if the Company any Applicant cash collateralizes any portion of such Defaulting Bank’s Pro Rata Share of the LC Obligations 's Credit Exposure pursuant this clause (cto Section 2.12(c), the Company Applicants shall not be required to pay any fees to such Defaulting Bank pursuant to Section 3.4 2.05(b) with respect to such Defaulting Bank’s Pro Rata Share of the LC Obligations 's Credit Exposure during the period such Defaulting Bank’s Pro Rata Share of the LC Obligations 's Credit Exposure is cash collateralized;
(iv) if the Credit Exposure of the non-Defaulting Banks’ Pro Rata Share of the LC Obligations Banks is reallocated pursuant to this clause (cSection 2.12(c), then the fees payable to the Banks pursuant to Section 2.5(a2.05(a) and Section 3.4 2.05(b) shall be adjusted in accordance with such non-Defaulting Banks’ ' Pro Rata Shares; or
(v) if any Defaulting Bank’s Pro Rata Share of the LC Obligations 's Credit Exposure is neither reallocated nor cash collateralized nor reallocated pursuant to this clause (cSection 2.12(c), then, without prejudice to any rights or remedies of any LC Issuer the Issuing Bank or any Bank hereunder, all fees that otherwise would have been payable to such Defaulting Bank (solely with respect to the portion of such Defaulting Bank’s Commitment that was utilized by such LC Obligations) and LC Fees payable under Section 3.4 2.05(b) with respect to such Defaulting Bank’s Pro Rata Share of the LC Obligations 's Credit Exposure shall be payable to the applicable LC Issuer Issuing Bank until such Defaulting Bank’s Pro Rata Share of the LC Obligation Credit Exposure is cash collateralized and/or reallocated; and
(d) so long as any Bank is a Defaulting Bank, no LC Issuer the Issuing Bank shall not be required to issue issue, amend, or Modify increase any Facility LCLOC, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Banks and/or cash collateral will be provided by the Company applicable Applicant in accordance with clause (c) aboveSection 2.12(c), and participating interests in any such newly issued or Modified Facility LC increased LOC shall be allocated among non-Defaulting Banks in a manner consistent with clause(c)(iSection 2.12(c)(i) above (and Defaulting Banks shall not participate therein).
(e) If (i) a Bankruptcy Event with respect to a Parent of any Bank shall occur following the date hereof and for so long as such event shall continue or (ii) any LC Issuer has a good faith belief that any Bank has defaulted in fulfilling its obligations under one or more other agreements in which such Bank commits to extend credit, such LC Issuer shall not be required to issue, amend or increase any Facility LC, unless such LC Issuer, as the case may be, shall have entered into arrangements with the Company or such Bank, satisfactory to such LC Issuer, as the case may be, to defease any risk to it in respect of such Bank hereunder.
(f) . In the event that the Administrative Agent, the Company, and each LC Issuer the Issuing Bank each agrees that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the Banks’ Pro Rata Shares Credit Exposure of the LC Obligations Banks shall be readjusted to reflect the inclusion of such Bank’s 's Commitment Amount and on such date such Bank shall purchase at par such of the Loans of the other Banks participations in outstanding LOCs and LOC Disbursements as the Administrative Agent shall determine may be necessary in order for such Bank to hold such Loans participations in accordance with its Pro Rata Share of the Aggregate Commitment; provided, that if the Company cash collateralized any portion of such Defaulting Bank’s Pro Rata Share of the LC Obligations pursuant to Section 4.7(c), such cash shall be returned to the CompanyShare.
Appears in 1 contract
Sources: Letter of Credit Facility Agreement (Sunpower Corp)
Defaulting Banks. Notwithstanding any provision of this Agreement to the contrary, if any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Commitment Fees shall cease to accrue on the unfunded portion If any Letters of the Commitment of such Defaulting Bank pursuant to Section 2.5(a);
(b) the Commitment and Outstanding Credit Exposure of such Defaulting Bank shall not be included in determining whether the Majority Banks have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.1); provided, that, except as otherwise provided in Section 10.1, this clause (b) shall not apply to the vote of a Defaulting Bank in the case of an amendment, waiver or other modification requiring the consent of such Bank or each Bank directly affected thereby;
(c) if any LC Obligations exist are outstanding at the time a Bank becomes a Defaulting Bank Bank, and the Commitments have not been terminated in accordance with Section 8.01, then:
(i) so long as no Default or Event of Default shall be continuing immediately before or after giving effect to such reallocationhas occurred and is continuing, all or any part of such LC Obligation the participations in outstanding Letters of Credit shall be reallocated among the nonBanks that are Non-Defaulting Banks in accordance with their respective Pro Rata Share Applicable Percentages (disregarding any Defaulting Bank's Commitment) but only to the extent that (x) the sum of (A) the aggregate principal amount of all nonAdvances made by the Non-Defaulting Banks (in their capacity as Banks) and outstanding at such time, plus (B) the Non-Defaulting Banks’ Outstanding Credit Exposure ' aggregate LC Exposures, plus (C) such Defaulting Bank's LC Exposure, does not exceed the total of all nonNon-Defaulting Banks’ ' Commitments, (y) no Bank’s Outstanding Credit Exposure shall exceed its Commitment and (z) the conditions set forth in Section 11.2 are satisfied at such time;
(ii) if the reallocation described in subclause clause (i) above cannot, or can only partially, be effected, the Company shall within one (1) Business Day following notice by the Agentany Issuing Bank, cash collateralize for the benefit of the relevant LC Issuer such Defaulting Bank’s Pro Rata Share of the 's LC Obligations Exposure (after giving effect to any partial reallocation pursuant to subclause clause (i) above) by paying cash collateral to such Issuing Bank; provided that, so long as no Default is continuing, such cash collateral shall be released promptly upon the earliest of (A) the reallocation of the LC Exposure of the Defaulting Bank to Non-Defaulting Banks in accordance with clause (i) above, (B) a reduction in the procedures set forth outstanding amount available to be drawn under all outstanding Letters of Credit to zero, (C) the termination of the Defaulting Bank status of the applicable Bank, (D) such Issuing Bank's good faith determination that there exists excess cash collateral (in which case, an amount equal to such excess cash collateral shall be released) or (E) the posting of cash collateral for the amount of a Defaulting Bank as contemplated by Section 9.2 for so long as 2.07(g). In the event any Letter of Credit or a portion thereof is collateralized, no fees shall be payable by the Company on the collateralized amount of such LC Obligation is outstandingLetter of Credit or a portion thereof;
(iii) if to the Company cash collateralizes any portion extent the Applicable Percentages of such Defaulting Bank’s Pro Rata Share Letters of Credit of the LC Obligations pursuant this clause (c), the Company shall not be required to pay any fees to such Defaulting Bank pursuant to Section 3.4 with respect to such Defaulting Bank’s Pro Rata Share of the LC Obligations during the period such Defaulting Bank’s Pro Rata Share of the LC Obligations is cash collateralized;
(iv) if the nonNon-Defaulting Banks’ Pro Rata Share of the LC Obligations is Banks are reallocated pursuant to this clause (cSection 2.07(a), then the fees payable to the Banks pursuant to Section 2.5(a4.01(b)(i) and Section 3.4 shall be adjusted in accordance with such nonthe Non-Defaulting Banks’ Pro Rata Shares' Applicable Percentages of Letters of Credit as reallocated; or
(viv) if to the extent any Defaulting Bank’s Pro Rata Share 's Applicable Percentage of the LC Obligations Letters of Credit is neither reallocated nor cash collateralized nor reallocated pursuant to this clause (cSection 2.07(a), then, without prejudice to any rights or remedies of any LC Issuer Issuing Bank or any Bank hereunder, all letter of credit fees that otherwise would have been payable to such Defaulting Bank (solely with respect to the portion of such Defaulting Bank’s Commitment that was utilized by such LC Obligations) and LC Fees payable under Section 3.4 4.01(b)(i) with respect to such Defaulting Bank’s Pro Rata Share 's Applicable Percentage of the LC Obligations Letters of Credit that has not been reallocated or collateralized shall be payable to the applicable LC Issuer Issuing Bank until such Defaulting Bank’s Pro Rata Share 's Applicable Percentage of the LC Obligation is Letters of Credit has been fully cash collateralized and/or reallocated; and.
(db) so So long as any Bank is a Defaulting Bank, no LC Issuer Issuing Bank shall be required to issue issue, amend or Modify increase any Facility LCLetter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the nonNon-Defaulting Banks and/or cash collateral will be provided by the Company in accordance with clause (cSection 2.07(a) aboveor provided in accordance with Section 2.07(g), and participating interests in any such newly issued issued, amended or Modified Facility LC increased Letter of Credit shall be allocated among nonNon-Defaulting Banks in a manner consistent with clause(c)(iSection 2.07(a)(i) above (and Defaulting Banks shall not participate therein).
(ec) If (i) a Bankruptcy Event with respect to a Parent No Commitment of any Bank shall occur following be increased or otherwise affected, and, except as otherwise expressly provided in this Section 2.07, performance by the date hereof and for so long as such event shall continue or (ii) any LC Issuer has a good faith belief that any Bank has defaulted in fulfilling Company of its obligations under one or more other agreements in which such Bank commits to extend credit, such LC Issuer shall not be required excused or otherwise modified as a result of the operation of this Section 2.07. The rights and remedies against a Defaulting Bank under this Section 2.07 are in addition to issueany other rights and remedies which the Company, amend the Administrative Agent, any Bank or increase any Facility LC, unless Issuing Bank may have against such LC Issuer, as the case may be, shall have entered into arrangements with the Company or such Defaulting Bank, satisfactory to such LC Issuer, as the case may be, to defease any risk to it in respect of such Bank hereunder.
(d) [Reserved].
(e) [Reserved].
(f) In the event that the Agent, If the Company, the Administrative Agent and each LC Issuer each agrees Issuing Bank agree in writing in their reasonable determination that a Defaulting Bank has adequately remedied all matters that caused such Bank should no longer be deemed to be a Defaulting Bank, then the Banks’ Pro Rata Shares Administrative Agent will so notify the parties hereto, whereupon as of the LC Obligations shall be readjusted effective date specified in such notice and subject to reflect any conditions set forth therein (which may include arrangements with respect to any cash collateral), that Bank will, to the inclusion extent applicable, purchase, at par, that portion of such Bank’s Commitment and on such date such Bank shall purchase at par such of the Loans outstanding Advances of the other Banks or take such other actions as the Administrative Agent shall may determine may to be necessary to cause the Advances and funded and unfunded participations in order for such Bank Letters of Credit to hold such Loans be held on a pro rata basis by the Banks in accordance with its Pro Rata Share their Applicable Percentages (without giving effect to Section 2.07(a)), whereupon such Bank will cease to be a Defaulting Bank; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Aggregate CommitmentCompany while that Bank was a Defaulting Bank; and provided, further, that if except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Bank to Non-Defaulting Bank will constitute a waiver or release of any claim of any party hereunder arising from such Bank's having been a Defaulting Bank.
(g) Notwithstanding anything to the contrary contained in this Agreement, any payment of principal, interest, commitment fees, Letter of Credit commissions or other amounts received by the Administrative Agent for the account of any Defaulting Bank under this Agreement (whether voluntary or mandatory, at maturity, pursuant to Article VIII 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 Bank to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Bank to any Issuing Bank hereunder; third, as the Company may request (so long as no Default exists), to the funding of any Advance in respect of which that Defaulting Bank has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fourth, as the Company may request, to be held in a cash collateralized collateral account to cash collateralize such Defaulting Bank's participations in Letters of Credit that are then outstanding; fifth, if so determined by the Administrative Agent and the Company, to be held in a cash collateral account and released in order to satisfy obligations of such Defaulting Bank to fund Advances under this Agreement; sixth, if so determined by the Administrative Agent and the Company, to be held in a cash collateral account to cash collateralize such Defaulting Bank's participations in Letters of Credit, seventh, to the payment of any portion amounts owing to the Banks or the Issuing Banks as a result of any judgment of a court of competent jurisdiction obtained by any Bank or Issuing Bank against such Defaulting Bank as a result of such Defaulting Bank’s Pro Rata Share 's breach of its obligations under this Agreement; eighth, 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 Bank as a result of such Defaulting Bank's breach of its obligations under this Agreement; and ninth, to such Defaulting Bank or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the LC Obligations pursuant to Section 4.7(c)principal amount of any Advance in respect of which such Defaulting Bank 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 applicable conditions set forth in Article V were satisfied or waived, such payment shall be applied solely to pay the Advances of all Non-Defaulting Banks on a pro rata basis prior to being applied to the payment of any Advances of such Defaulting Bank and provided further that any amounts held as cash collateral for funding obligations of a Defaulting Bank shall be returned to such Defaulting Bank upon the Companytermination of this Agreement and the satisfaction of such Defaulting Bank's obligations hereunder. Any payments, prepayments or other amounts paid or payable to a Defaulting Bank that are applied (or held) to pay amounts owed by a Defaulting Bank or to post cash collateral pursuant to this Section 2.07 shall be deemed paid to and redirected by such Defaulting Bank, and each Bank irrevocably consents hereto.
(h) The Commitment, Revolving Credit Exposure and LC Exposure of any Defaulting Bank shall not be included in determining whether the Majority Banks or any other requisite Banks have taken or may take any action hereunder or under any Note (including any consent to any amendment, waiver or other modification pursuant to Section 10.01); provided that any amendment, waiver or other modification requiring the consent of all Banks or all Banks affected thereby shall, except as otherwise provided in Section 10.01, require the consent of such Defaulting Bank in accordance with the terms hereof.
Appears in 1 contract
Sources: Revolving Credit and Letter of Credit Agreement (Cigna Corp)