Common use of Defaulting Banks Clause in Contracts

Defaulting Banks. (a) If at any time (i) any Bank shall be a Defaulting Bank, (ii) such Defaulting Bank shall owe a Defaulted Advance to the Borrower and (iii) the Borrower shall be required to make any payment hereunder or under any Note to or for the account of such Defaulting Bank, then the Borrower may, so long as no Event of Default shall have occurred and be continuing at such time and to the fullest extent permitted by applicable law, set off and otherwise apply the amount owed by the Borrower to or for the account of such Defaulting Bank against the obligation of such Defaulting Bank to make such Defaulted Advance. If the Borrower shall so set off and otherwise apply the amount owed by the Borrower to or for the account of such Defaulting Bank against the obligation of such Defaulting Bank to make any such Defaulted Advance on any date, the amount so set off and otherwise applied by the Borrower shall constitute for all purposes of this Agreement and the Notes an Advance by such Defaulting Bank made on the date of such setoff. Such Advance shall be a Base Rate Advance and shall be considered, for all purposes of this Agreement, to comprise part of the Borrowing in connection with which such Defaulted Advance was originally required to have been made pursuant to Section 2.01 or Section 2.03(a), as the case may be, even if the other Advances comprising such Borrowing shall be Eurocurrency Rate Advances on the date such Advance is deemed to be made pursuant to this Section 2.19(a). The Borrower shall notify the Administrative Agent at any time the Borrower makes a setoff under this Section 2.19(a) and shall specify in such notice (A) the name of the Defaulting Bank and the Defaulted Advance required to be made by such Defaulting Bank and (B) the amount set off and otherwise applied in respect of such Defaulted Advance pursuant to this Section 2.19(a). Any part of such payment otherwise required to be made by the Borrower to or for the account of such Defaulting Bank that is paid by the Borrower, after giving effect to the amount set off and otherwise applied by the Borrower pursuant to this Section 2.19(a), shall be applied by the Administrative Agent as specified in Section 2.19(b) or 2.19(c).

Defaulting Banks. (a) If at any time (i) Anything contained herein to the contrary notwithstanding, in the event that any Bank shall be becomes a Defaulting Bank, then for so long as such Bank is a Defaulting Bank (iia) such Defaulting Bank shall owe be deemed not to be a Defaulted Advance “Bank” for purposes of voting on any matters (including the granting of any consents or waivers) with respect to any of the Loan Documents, provided that any amendment, waiver or modification (i) requiring the consent of all Banks to the Borrower and extent such Defaulting Bank is directly affected differently than all of the other Banks or (ii) in the case of any amendment pursuant to Sections 9.2(a)(ii), (iii), (iv), (v) or (vi), which directly affects such Defaulting Bank differently than other directly affected Banks, shall require the Borrower shall be required to make any payment hereunder or under any Note to or for the account consent of such Defaulting Bank; (b) any prepayment of any outstanding Advance shall, then if the Borrower mayCompany so directs at the time of making such prepayment, so long as no Event of Default shall have occurred and be continuing at such time and applied to the fullest extent permitted by applicable law, set off Loans and otherwise apply Swingline Exposures of other Banks and (c) such Defaulting Bank’s Commitment and outstanding Loans shall be excluded for purposes of calculating the amount owed by the Borrower commitment fee payable to or for the account of other Banks pursuant to Section 2.8 and such Defaulting Bank shall not be entitled to receive any commitment fee pursuant to Section 2.8 with respect to such Defaulting Bank’s Commitment. Notwithstanding the foregoing, no Commitment of any Bank shall be increased or, except as provided in Section 2.12, otherwise affected, and, except as otherwise expressly provided in this Section 2.11, performance by the Company of its obligations hereunder and the other Loan Documents shall not be excused or otherwise modified as a result of any Funding Default or the operation of this Section 2.11. The rights and remedies against a Defaulting Bank under this Section 2.11 are in addition to other rights and remedies which the obligation of Company may have against such Defaulting Bank with respect to make such Defaulted Advance. If any Funding Default and which the Borrower shall so set off and otherwise apply the amount owed by the Borrower to Administrative Agent or for the account of any Bank may have against such Defaulting Bank against the obligation of such Defaulting Bank with respect to make any such Defaulted Advance on any date, the amount so set off and otherwise applied by the Borrower shall constitute for all purposes of this Agreement and the Notes an Advance by such Defaulting Bank made on the date of such setoff. Such Advance shall be a Base Rate Advance and shall be considered, for all purposes of this Agreement, to comprise part of the Borrowing in connection with which such Defaulted Advance was originally required to have been made pursuant to Section 2.01 or Section 2.03(a), as the case may be, even if the other Advances comprising such Borrowing shall be Eurocurrency Rate Advances on the date such Advance is deemed to be made pursuant to this Section 2.19(a). The Borrower shall notify the Administrative Agent at any time the Borrower makes a setoff under this Section 2.19(a) and shall specify in such notice (A) the name of the Defaulting Bank and the Defaulted Advance required to be made by such Defaulting Bank and (B) the amount set off and otherwise applied in respect of such Defaulted Advance pursuant to this Section 2.19(a). Any part of such payment otherwise required to be made by the Borrower to or for the account of such Defaulting Bank that is paid by the Borrower, after giving effect to the amount set off and otherwise applied by the Borrower pursuant to this Section 2.19(a), shall be applied by the Administrative Agent as specified in Section 2.19(b) or 2.19(c)Funding Default.

Defaulting Banks. Anything contained herein to the contrary notwithstanding, in the event that any Bank, other than at the direction or request of any regulatory agency or authority, defaults (a “Defaulting Bank”) in its obligation to fund (a “Funding Default”) any Revolving Loan or its portion of any unreimbursed payment under Section 2.2(b)(iv) or 2.4(e) (in each case, a “Defaulted Loan”), then (a) If at during any time (i) any Bank shall be a Default Period with respect to such Defaulting Bank, (ii) such Defaulting Bank shall owe be deemed not to be a Defaulted Advance “Bank” for purposes of voting on any matters (including the granting of any consents or waivers) with respect to any of the Credit Documents; (b) to the Borrower and (iii) the Borrower shall be required to make any payment hereunder or under any Note to or for the account of such Defaulting Bank, then the Borrower may, so long as no Event of Default shall have occurred and be continuing at such time and to the fullest extent permitted by applicable law, set off until such time as the Default Excess with respect to such Defaulting Bank shall have been reduced to zero, (i) any voluntary prepayment of the Revolving Loans shall, if a Borrower so directs at the time of making such voluntary prepayment, be applied to the Revolving Loans of other Banks as if such Defaulting Bank had no Revolving Loans outstanding and otherwise apply the amount owed by the Borrower to or for the account Revolving Exposure of such Defaulting Bank against were zero, and (ii) any mandatory prepayment of the obligation Revolving Loans shall, if a Borrower so directs at the time of making such mandatory prepayment, be applied to the Revolving Loans of other Banks (but not to the Revolving Loans of such Defaulting Bank) as if such Defaulting Bank to make such had funded all Defaulted Advance. If the Borrower shall so set off and otherwise apply the amount owed by the Borrower to or for the account Loans of such Defaulting Bank, it being understood and agreed that such Borrower shall be entitled to retain any portion of any mandatory prepayment of the Revolving Loans that is not paid to such Defaulting Bank against solely as a result of the obligation operation of the provisions of this clause (b); (c) such Defaulting Bank’s Revolving Commitment and outstanding Revolving Loans and such Defaulting Bank’s Pro Rata Share of the Letter of Credit Usage shall be excluded for purposes of calculating the Revolving Commitment fee payable to Banks in respect of any day during any Default Period with respect to such Defaulting Bank, and such Defaulting Bank shall not be entitled to receive any Revolving Commitment fee pursuant to Section 2.11 with respect to such Defaulting Bank’s Revolving Commitment in respect of any Default Period with respect to such Defaulting Bank; and (d) the Total Utilization of Revolving Commitments as at any date of determination shall be calculated as if such Defaulting Bank had funded all Defaulted Loans of such Defaulting Bank. No Revolving Commitment of any Bank to make shall be increased or otherwise affected, and, except as otherwise expressly provided in this Section 2.23, performance by each Borrower of its obligations hereunder and the other Credit Documents shall not be excused or otherwise modified as a result of any such Defaulted Advance on any date, Funding Default or the amount so set off and otherwise applied by the Borrower shall constitute for all purposes operation of this Agreement Section 2.23. The rights and the Notes an Advance by remedies against a Defaulting Bank under this Section 2.23 are in addition to other rights and remedies which each Borrower may have against such Defaulting Bank made on the date of such setoff. Such Advance shall be a Base Rate Advance with respect to any Funding Default and shall be considered, for all purposes of this Agreement, to comprise part of the Borrowing in connection with which such Defaulted Advance was originally required to have been made pursuant to Section 2.01 or Section 2.03(a), as the case may be, even if the other Advances comprising such Borrowing shall be Eurocurrency Rate Advances on the date such Advance is deemed to be made pursuant to this Section 2.19(a). The Borrower shall notify the Administrative Agent at or any time the Borrower makes a setoff under this Section 2.19(a) and shall specify in such notice (A) the name of the Defaulting Bank and the Defaulted Advance required to be made by may have against such Defaulting Bank and (B) the amount set off and otherwise applied in with respect of such Defaulted Advance pursuant to this Section 2.19(a). Any part of such payment otherwise required to be made by the Borrower to or for the account of such Defaulting Bank that is paid by the Borrower, after giving effect to the amount set off and otherwise applied by the Borrower pursuant to this Section 2.19(a), shall be applied by the Administrative Agent as specified in Section 2.19(b) or 2.19(c)any Funding Default.

Defaulting Banks. (a) If In the event that, at any one time (i) any Bank shall be a Defaulting Bank, (ii) such Defaulting Bank shall owe a Defaulted Advance Loan to the Borrower Company and (iii) the Borrower Company shall be required to make any payment hereunder or under any Note to or for the account of such Defaulting Bank, then the Borrower Company may, so long as no Event of Default shall have occurred and occur or be continuing at such time and to the fullest extent permitted by applicable law, set off and otherwise apply the amount owed by obligations of the Borrower Company to make such payment to or for the account of such Defaulting Bank against the obligation of such Defaulting Bank to make such Defaulted AdvanceLoan. If In the Borrower event that, on any date, the Company shall so set off and otherwise apply the amount owed by the Borrower its obligation to or for the account of make any such Defaulting Bank payment against the obligation of such Defaulting Bank to make any such Defaulted Advance Loan on any or prior to such date, the amount so set off and otherwise applied by the Borrower Company shall constitute for all purposes of this Agreement and the Notes an Advance a Loan by such Defaulting Bank made on the date of such setoffsetoff under the provision hereof pursuant to which such Defaulted Loan was originally required to have been made. Such Advance shall be a Base Rate Advance and Loan shall be considered, for all purposes of this Agreement, to comprise part of the Borrowing Loan in connection with which such Defaulted Advance Loan was originally required to have been made pursuant to Section 2.01 or Section 2.03(a), as the case may be, even if the other Advances comprising such Borrowing shall be Eurocurrency Rate Advances on the date such Advance is deemed to be made pursuant to this Section 2.19(a)made. The Borrower Company shall notify the Administrative Agent at any time the Borrower makes a setoff under Company exercises its right of set-off pursuant to this Section 2.19(asubsection (a) and shall specify set forth in such notice (A) the name of the Defaulting Bank and the Defaulted Advance Loan required to be made by such Defaulting Bank and (B) the amount set off and otherwise applied in respect of such Defaulted Advance Loan pursuant to this Section 2.19(asubsection (a). Any part portion of such payment otherwise required to be made by the Borrower Company to or for the account of such Defaulting Bank that which is paid by the BorrowerCompany, after giving effect to the amount set off and otherwise applied by the Borrower Company pursuant to this Section 2.19(asubsection (a), shall be applied by the Administrative Agent as specified in subsection (b) of this Section 2.19(b) or 2.19(c)2.24.

Defaulting Banks. Notwithstanding any provision of this Agreement to the contrary, if any Bank becomes a Defaulting Bank, then any amount payable to such Defaulting Bank hereunder (awhether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Bank pursuant to this Agreement) If at shall, in lieu of being distributed to such Defaulting Bank, subject to any time applicable requirements of law, be applied (i) first, to the payment of any amounts owing by such Defaulting Bank shall to the Administrative Agent hereunder, and (ii) second, to such Defaulting Bank, in each case, as otherwise directed by a court of competent jurisdiction. In the event that the Administrative Agent and the Borrower both agree that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, (ii) then the Loans of the Banks shall be readjusted and reallocated to reflect the inclusion of such Defaulting Bank and on such date such Bank shall owe a Defaulted Advance to the Borrower and (iii) the Borrower shall be required to make any payment hereunder or under any Note to or for the account of purchase at par such Defaulting Bank, then the Borrower may, so long as no Event of Default shall have occurred and be continuing at such time and to the fullest extent permitted by applicable law, set off and otherwise apply the amount owed by the Borrower to or for the account of such Defaulting Bank against the obligation of such Defaulting Bank to make such Defaulted Advance. If the Borrower shall so set off and otherwise apply the amount owed by the Borrower to or for the account of such Defaulting Bank against the obligation of such Defaulting Bank to make any such Defaulted Advance on any date, the amount so set off and otherwise applied by the Borrower shall constitute for all purposes of this Agreement and the Notes an Advance by such Defaulting Bank made on the date of such setoff. Such Advance shall be a Base Rate Advance and shall be considered, for all purposes of this Agreement, to comprise part of the Borrowing in connection with which such Defaulted Advance was originally required to have been made pursuant to Section 2.01 or Section 2.03(a), as the case may be, even if Loans of the other Advances comprising such Borrowing shall be Eurocurrency Rate Advances on the date such Advance is deemed to be made pursuant to this Section 2.19(a). The Borrower shall notify Banks as the Administrative Agent at any time the Borrower makes a setoff under this Section 2.19(a) and shall specify determine may be necessary in order for such notice (A) the name of the Defaulting Bank and the Defaulted Advance required to be made by hold such Defaulting Bank and (B) the amount set off and otherwise applied Loans in respect of such Defaulted Advance pursuant to this Section 2.19(a). Any part of such payment otherwise required to be made by the Borrower to or for the account of such Defaulting Bank that is paid by the Borrower, accordance with its applicable Percentage after giving effect to such reallocation; provided notwithstanding the amount set off and otherwise applied by foregoing, the Borrower pursuant must comply with all applicable terms hereof. Notwithstanding anything set forth herein to this Section 2.19(a)the contrary, a Defaulting Bank shall not have any voting or consent rights under or with respect to any Credit Documents or constitute a “Bank” for any voting or consent rights under or with respect to any Credit Document, in any matter requiring the consent of Required Banks. Moreover, for the purposes of determining Required Banks and the Loans held, Defaulting Banks shall be applied by excluded from the Administrative Agent as specified total Loans outstanding. For purposes of clarification, a Defaulting Bank shall not lose its right to vote with respect to matters set forth in clauses (i) and (ii) of Section 2.19(b) or 2.19(c).11.11 below

Defaulting Banks. (a) If In the event that, at any one time (i) any Bank shall be a Defaulting Bank, (ii) such Defaulting Bank shall owe a Defaulted Advance Loan to the Borrower Company and (iii) the Borrower Company shall be required to make any payment hereunder or under any Note to or for the account of such Defaulting Bank, then the Borrower Company may, so long as no Event of Default shall have occurred and occur or be continuing at such time and to the fullest extent permitted by applicable law, set off and otherwise apply the amount owed by obligations of the Borrower Company to make such payment to or for the account of such Defaulting Bank against the obligation of such Defaulting Bank to make such Defaulted AdvanceLoan. If In the Borrower event that, on any date, the Company shall so set off and otherwise apply the amount owed by the Borrower its obligation to or for the account of make any such Defaulting Bank payment against the obligation of such Defaulting Bank to make any such Defaulted Advance Loan on any or prior to such date, the amount so set off and otherwise applied by the Borrower Company shall constitute for all purposes of this Agreement and the Notes an Advance a Loan by such Defaulting Bank made on the date of such setoffsetoff under the provision hereof pursuant to which such Defaulted Loan was originally required to have been made. Such Advance shall be a Base Rate Advance and Loan shall be considered, for all purposes of this Agreement, to comprise part of the Borrowing Loan in connection with which such Defaulted Advance Loan was originally required to have been made pursuant to Section 2.01 or Section 2.03(a), as the case may be, even if the other Advances comprising such Borrowing shall be Eurocurrency Rate Advances on the date such Advance is deemed to be made pursuant to this Section 2.19(a)made. The Borrower Company shall notify the Administrative Agent at any time the Borrower makes a setoff under Company exercises its right of set-off pursuant to this Section 2.19(asubsection (a) and shall specify set forth in such notice (A) the name of the Defaulting Bank and the Defaulted Advance Loan required to be made by such Defaulting Bank and (B) the amount set off and otherwise applied in respect of such Defaulted Advance Loan pursuant to this Section 2.19(asubsection (a). Any part portion of such payment otherwise required to be made by the Borrower Company to or for the account of such Defaulting Bank that which is paid by the BorrowerCompany, after giving effect to the amount set off and otherwise applied by the Borrower Company pursuant to this Section 2.19(asubsection (a), shall be applied by the Administrative Agent as specified in subsection (b) of this Section 2.19(b) or 2.19(c)2.19.

Defaulting Banks. (a) If at any time (i) any Bank shall be a Defaulting Bank, (ii) such Defaulting Bank shall owe a Defaulted Advance to the applicable Borrower and (iii) the applicable Borrower shall be required to make any payment hereunder or under any Note to or for the account of such Defaulting Bank, then the such Borrower may, so long as no Event of Default shall have occurred and be continuing at such time and to the fullest extent permitted by applicable law, set off and otherwise apply the amount owed by the such Borrower to or for the account of such Defaulting Bank against the obligation of such Defaulting Bank to make such Defaulted Advance. If the applicable Borrower shall so set off and otherwise apply the amount owed by the such Borrower to or for the account of such Defaulting Bank against the obligation of such Defaulting Bank to make any such Defaulted Advance on any date, the amount so set off and otherwise applied by the such Borrower shall constitute for all purposes of this Agreement and the Notes an Advance by such Defaulting Bank made on the date of such setoff. Such Advance shall be a Base Rate Advance and shall be considered, for all purposes of this Agreement, to comprise part of the Borrowing in connection with which such Defaulted Advance was originally required to have been made pursuant to Section 2.01 or Section 2.03(a), as the case may be2.01, even if the other Advances comprising such Borrowing shall be Eurocurrency Rate Advances on the date such Advance is deemed to be made pursuant to this Section 2.19(a2.16(a). The applicable Borrower shall notify the Administrative Agent at any time the such Borrower makes a setoff under this Section 2.19(a2.16(a) and shall specify in such notice (A) the name of the Defaulting Bank and the Defaulted Advance required to be made by such Defaulting Bank and (B) the amount set off and otherwise applied in respect of such Defaulted Advance pursuant to this Section 2.19(a2.16(a). Any part of such payment otherwise required to be made by the such Borrower to or for the account of such Defaulting Bank that is paid by the such Borrower, after giving effect to the amount set off and otherwise applied by the such Borrower pursuant to this Section 2.19(a2.16(a), shall be applied by the Administrative Agent as specified in Section 2.19(b2.16(b) or 2.19(c2.16(c). If at any time (i) any Bank shall be a Defaulting Bank, (ii) such Defaulting Bank shall owe a Defaulted Amount to the Administrative Agent or any of the other Banks and (iii) the applicable Borrower shall make any payment hereunder or under any Note to the Administrative Agent for the account of such Defaulting Bank, then the Administrative Agent may, on its behalf or on behalf of such other Banks and to the fullest extent permitted by applicable law, apply at such time the amount so paid by such Borrower to or for the account of such Defaulting Bank to the payment of each such Defaulted Amount to the extent required to pay such Defaulted Amount. If the Administrative Agent shall so apply any such amount to the payment of any such Defaulted Amount on any date, the amount so applied by the Administrative Agent shall constitute for all purposes of this Agreement and the Notes payment to such extent of such Defaulted Amount on such date. Any such amount so applied by the Administrative Agent shall be retained by the Administrative Agent or distributed by the Administrative Agent to such other Banks, ratably in accordance with their respective portions of such Defaulted Amounts payable at such time to the Administrative Agent and such other Banks and, if the amount of such payment made by such Borrower shall at any time be insufficient to pay all Defaulted Amounts owing at such time to the Administrative Agent and the other Banks, in the following order of priority: first, to the Administrative Agent for any Defaulted Amounts owing to the Administrative Agent (solely in its capacity as Administrative Agent) at such time; and second, to the other Banks for any Defaulted Amounts owing to the other Banks (solely in their capacity as Banks) at such time, ratably in accordance with such respective Defaulted Amounts owing to each other Bank (solely in its capacity as a Bank) at such time. Any part of such payment made by a Borrower for the account of such Defaulting Bank remaining, after giving effect to the amount applied by the Administrative Agent pursuant to this Section 2.16(b), shall be applied by the Administrative Agent as specified in Section 2.16(c). If at any time, (i) any Bank shall be a Defaulting Bank, (ii) such Defaulting Bank shall not owe a Defaulted Advance or a Defaulted Amount and (iii) the applicable Borrower, the Administrative Agent or any other Bank shall be required to pay or to distribute any amount hereunder or under any Note to or for the account of such Defaulting Bank, then such Borrower or such other Bank shall pay such amount to the Administrative Agent to be held by the Administrative Agent, to the fullest extent permitted by applicable law, in escrow or the Administrative Agent shall, to the fullest extent permitted by applicable law, hold in escrow such amount otherwise held by it. Any funds held by the Administrative Agent in escrow under this Section 2.16(c) shall be deposited by the Administrative Agent in an account with Bank of America, in the name and under the control of the Administrative Agent, but subject to the provisions of this Section 2.16(c). The terms applicable to such account, including the rate of interest payable with respect to the credit balance of such account from time to time, shall be Bank of America's standard terms applicable to escrow accounts maintained with it. Any interest credited to such account from time to time shall be held by the Administrative Agent in escrow under, and applied by the Administrative Agent from time to time in accordance with the provisions of, this Section 2.16(c). The Administrative Agent shall, to the fullest extent permitted by applicable law, apply all funds so held in escrow from time to time to the extent necessary to make any Advances required to be made by such Defaulting Bank and to pay any amount payable by such Defaulting Bank hereunder to the Administrative Agent or any other Bank, as and when such Advances or such amounts are required to be made or paid and, if the amount so held in escrow shall any time be insufficient to make and pay all such Advances and all such amounts required to be made or paid at such time, in the following order of priority: first, to the Administrative Agent for any amounts due and payable by such Defaulting Bank to the Administrative Agent hereunder (solely in its capacity as Administrative Agent) at such time; second, to the other Banks for any amounts due and payable by such Defaulting Bank to the other Banks hereunder (solely in their capacity as Banks) at such time, ratably in accordance with such respective amounts due and payable to each other Bank (solely in its capacity as Bank) at such time; and third, to the applicable Borrower for any Advances required to be made by such Defaulting Bank pursuant to the Commitment of such Defaulting Bank at such time. If such Defaulting Bank shall, at any time, cease to be a Defaulting Bank, any funds held by the Administrative Agent in escrow at such time with respect to such Defaulting Bank shall be distributed by the Administrative Agent to such Defaulting Bank and applied by such Defaulting Bank to the amounts owing to such Defaulting Bank at such time under this Agreement in accordance with the terms of this Agreement. The rights and remedies against a Defaulting Bank under this Section 2.16 are in addition to other rights and remedies that the applicable Borrower may have against such Defaulting Bank with respect to any Defaulted Advance and that the Administrative Agent or any other Bank may have against such Defaulting Bank with respect to any Defaulted Amount.

Defaulting Banks. (a) If at any time (i) any Bank shall be ---------------- a Defaulting Bank, (ii) such Defaulting Bank shall owe a Defaulted Advance to the Borrower and (iii) the Borrower shall be required to make any payment hereunder or under any Note to or for the account of such Defaulting Bank, then the Borrower may, so long as no Event of Default shall have occurred and be continuing at such time and to the fullest extent permitted by applicable law, set off and otherwise apply the amount owed by the Borrower to or for the account of such Defaulting Bank against the obligation of such Defaulting Bank to make such Defaulted Advance. If the Borrower shall so set off and otherwise apply the amount owed by the Borrower to or for the account of such Defaulting Bank against the obligation of such Defaulting Bank to make any such Defaulted Advance on any date, the amount so set off and otherwise applied by the Borrower shall constitute for all purposes of this Agreement and the Notes an Advance by such Defaulting Bank made on the date of such setoff. Such Advance shall be a Base Rate Advance and shall be considered, for all purposes of this Agreement, to comprise part of the Borrowing in connection with which such Defaulted Advance was originally required to have been made pursuant to Section 2.01 or ------------ Section 2.03(a), as the case may be, even if the other Advances comprising such --------------- Borrowing shall be Eurocurrency Rate Advances on the date such Advance is deemed to be made pursuant to this Section 2.19(a2.20(a). The Borrower shall notify the --------------- Administrative Agent at any time the Borrower makes a setoff under this Section 2.19(a------- 2.20(a) and shall specify in such notice (A) the name of the Defaulting Bank and ------- the Defaulted Advance required to be made by such Defaulting Bank and (B) the amount set off and otherwise applied in respect of such Defaulted Advance pursuant to this Section 2.19(a2.20(a). Any part of such payment otherwise required --------------- to be made by the Borrower to or for the account of such Defaulting Bank that is paid by the Borrower, after giving effect to the amount set off and otherwise applied by the Borrower pursuant to this Section 2.19(a2.20(a), shall be applied by --------------- the Administrative Agent as specified in Section 2.19(b2.20(b) or 2.19(c2.20(c).. --------------- -------

Defaulting Banks. Anything contained herein to the contrary notwithstanding, in the event that any Bank defaults (a “Defaulting Bank”) in its obligation to fund (a “Funding Default”) any Loan (a “Defaulted Loan”), then (a) If at during any time (i) any Bank shall be a Default Period with respect to such Defaulting Bank, (ii) such Defaulting Bank shall owe be deemed not to be a Defaulted Advance “Bank” for purposes of voting on any matters (including the granting of any consents or waivers) with respect to any of the Loan Documents; (b) to the Borrower and (iii) the Borrower shall be required to make any payment hereunder or under any Note to or for the account of such Defaulting Bank, then the Borrower may, so long as no Event of Default shall have occurred and be continuing at such time and to the fullest extent permitted by applicable law, set off until such time as the Default Excess with respect to such Defaulting Bank shall have been reduced to zero, (i) any voluntary prepayment of any outstanding Advance shall, if the Company so directs at the time of making such voluntary prepayment, be applied to the Loans of other Banks as if such Defaulting Bank had no Loans outstanding and otherwise apply the amount owed by the Borrower to or for the account outstanding Commitment of such Defaulting Bank against were zero, and (ii) any mandatory prepayment of the obligation Advances shall, if the Company so directs at the time of making such mandatory prepayment, be applied to the Loans of other Banks (but not to the Loans of such Defaulting Bank) as if such Defaulting Bank to make such had funded all Defaulted Advance. If the Borrower shall so set off and otherwise apply the amount owed by the Borrower to or for the account Loans of such Defaulting Bank; (c) such Defaulting Bank’s Commitment and outstanding Loans shall be excluded for purposes of calculating the commitment fee payable to the Banks pursuant to Section 2.8 in respect of any day during any Default Period with respect to such Defaulting Bank, and such Defaulting Bank against shall not be entitled to receive any commitment fee pursuant to Section 2.8 with respect to such Defaulting Bank’s Commitment in respect of any Default Period with respect to such Defaulting Bank; and (d) other than for purposes of Section 2.6, the obligation outstanding Advances and Loans of the Banks as at any date of determination shall be calculated as if such Defaulting Bank had funded all Defaulted Loans of such Defaulting Bank. No Commitment of any Bank to make any such Defaulted Advance on any dateshall be increased or otherwise affected, the amount so set off and and, except as otherwise applied expressly provided in this Section 2.11, performance by the Borrower Company of its obligations hereunder and the other Loan Documents shall constitute for all purposes not be excused or otherwise modified as a result of any Funding Default or the operation of this Agreement Section 2.11. The rights and remedies against a Defaulting Bank under this Section 2.11 are in addition to other rights and remedies which the Notes an Advance by Company may have against such Defaulting Bank made on the date of such setoff. Such Advance shall be a Base Rate Advance with respect to any Funding Default and shall be considered, for all purposes of this Agreement, to comprise part of the Borrowing in connection with which such Defaulted Advance was originally required to have been made pursuant to Section 2.01 or Section 2.03(a), as the case may be, even if the other Advances comprising such Borrowing shall be Eurocurrency Rate Advances on the date such Advance is deemed to be made pursuant to this Section 2.19(a). The Borrower shall notify the Administrative Agent at or any time the Borrower makes a setoff under this Section 2.19(a) and shall specify in such notice (A) the name of the Defaulting Bank and the Defaulted Advance required to be made by may have against such Defaulting Bank and (B) the amount set off and otherwise applied in with respect of such Defaulted Advance pursuant to this Section 2.19(a)any Funding Default. Any part of such payment otherwise required to be made by the Borrower to or for the account of such Defaulting Bank that is paid by the Borrower, after giving effect to the amount set off and otherwise applied by the Borrower pursuant to this Section 2.19(a), shall be applied by the Administrative Agent as specified in Section 2.19(b) or 2.19(c).CHICAGO MERCANTILE EXCHANGE INC. 2008 CREDIT AGREEMENT

Defaulting Banks. Notwithstanding anything contained in this Agreement to the contrary, (a) If at any time (i) any Bank shall be a Defaulting Bank, (ii) such Defaulting Bank shall owe a Defaulted Advance to the Borrower and (iii) the Borrower shall be required to make any payment hereunder or under any Note to or for the account of such Defaulting Bank, then the Borrower may, so long as no Event of Default shall have occurred and be continuing at such time and to the fullest extent permitted by applicable law, set off until such time as the Default Excess with respect to any Defaulting Bank shall have been reduced to zero or any such Defaulting Bank’s Credit Exposure in respect of outstanding Loans is terminated pursuant to Section 2.10(b) or assumed pursuant to Section 8.06, any prepayment of the Loans shall, if the Borrower directs at the time of making such prepayment, be applied to the Loans of the Banks other than such Defaulting Bank as if such Defaulting Bank had no Loans outstanding and (b) any Defaulting Bank’s unused Commitment shall be excluded for purposes of calculating the facility fee, and its Commitment shall be excluded for purposes of calculating the Letter of Credit Fee, payable to Banks pursuant to Section 2.09 in respect of any day during any Default Period with respect to any such Defaulting Bank (unless and until such Defaulting Bank’s Credit Exposure has been assumed pursuant to Section 8.06), and such Defaulting Bank shall not be entitled to receive any facility fee in respect of its unused Commitment, or Letter of Credit Fee in respect of its Commitment, pursuant to Section 2.09 during any Default Period with respect to such Defaulting Bank. No Commitment of any Bank shall be increased or otherwise apply the amount owed affected (other than in accordance with Section 8.06), and, except as otherwise expressly provided in this Section 2.20, performance by the Borrower of its obligations hereunder shall not be excused or otherwise modified as a result of any failure by a Defaulting Bank to fund or for the account operation of this Section 2.20. The rights and remedies against a Defaulting Bank under this Section 2.20 are in addition to other rights and remedies that the Borrower, the Servicing Agent or any other Bank may have against such Defaulting Bank against the obligation of with respect to any failure by such Defaulting Bank to make such Defaulted Advance. If perform its obligations under the Borrower shall so set off and otherwise apply the amount owed by the Borrower to or for the account of such Defaulting Bank against the obligation of such Defaulting Bank to make any such Defaulted Advance on any date, the amount so set off and otherwise applied by the Borrower shall constitute for all purposes of this Agreement and the Notes an Advance by such Defaulting Bank made on the date of such setoff. Such Advance shall be a Base Rate Advance and shall be considered, for all purposes of this Agreement, to comprise part of the Borrowing in connection with which such Defaulted Advance was originally required to have been made pursuant to Section 2.01 or Section 2.03(a), as the case may be, even if the other Advances comprising such Borrowing shall be Eurocurrency Rate Advances on the date such Advance is deemed to be made pursuant to this Section 2.19(a). The Borrower shall notify the Administrative Agent at any time the Borrower makes a setoff under this Section 2.19(a) and shall specify in such notice (A) the name of the Defaulting Bank and the Defaulted Advance required to be made by such Defaulting Bank and (B) the amount set off and otherwise applied in respect of such Defaulted Advance pursuant to this Section 2.19(a). Any part of such payment otherwise required to be made by the Borrower to or for the account of such Defaulting Bank that is paid by the Borrower, after giving effect to the amount set off and otherwise applied by the Borrower pursuant to this Section 2.19(a), shall be applied by the Administrative Agent as specified in Section 2.19(b) or 2.19(c).”

Defaulting Banks. (a) If at any time (i) any Bank shall ---------------- be a Defaulting Bank, (ii) such Defaulting Bank shall owe a Defaulted Advance to the Borrower and (iii) the Borrower shall be required to make any payment hereunder or under any Note to or for the account of such Defaulting Bank, then the Borrower may, so long as no Event of Default shall have occurred and be continuing at such time and to the fullest extent permitted by applicable law, set off and otherwise apply the amount owed by the Borrower to or for the account of such Defaulting Bank against the obligation of such Defaulting Bank to make such Defaulted Advance. If the Borrower shall so set off and otherwise apply the amount owed by the Borrower to or for the account of such Defaulting Bank against the obligation of such Defaulting Bank to make any such Defaulted Advance on any date, the amount so set off and otherwise applied by the Borrower shall constitute for all purposes of this Agreement and the Notes an Advance by such Defaulting Bank made on the date of such setoff. Such Advance shall be a Base Rate Advance and shall be considered, for all purposes of this Agreement, to comprise part of the Borrowing in connection with which such Defaulted Advance was originally required to have been made pursuant to Section 2.01 or ------------ Section 2.03(a), as the case may be, even if the other Advances comprising such --------------- Borrowing shall be Eurocurrency Rate Advances on the date such Advance is deemed to be made pursuant to this Section 2.19(a2.20(a). The Borrower shall notify the --------------- Administrative Agent at any time the Borrower makes a setoff under this Section 2.19(a------- 2.20(a) and shall specify in such notice (A) the name of the Defaulting Bank and ------- the Defaulted Advance required to be made by such Defaulting Bank and (B) the amount set off and otherwise applied in respect of such Defaulted Advance pursuant to this Section 2.19(a2.20(a). Any part of such payment otherwise --------------- -35- required to be made by the Borrower to or for the account of such Defaulting Bank that is paid by the Borrower, after giving effect to the amount set off and otherwise applied by the Borrower pursuant to this Section 2.19(a2.20(a), shall be --------------- applied by the Administrative Agent as specified in Section 2.19(b2.20(b) or 2.19(c2.20(c).. --------------- -------

Defaulting Banks. (a) If at any time (i) any Bank shall be a Defaulting Bank, (ii) such Defaulting Bank shall owe a Defaulted Advance to the applicable Borrower and (iii) the applicable Borrower shall be required to make any payment hereunder or under any Note to or for the account of such Defaulting Bank, then the such Borrower may, so long as no Event of Default shall have occurred and be continuing at such time and to the fullest extent permitted by applicable law, set off and otherwise apply the amount owed by the such Borrower to or for the account of such Defaulting Bank against the obligation of such Defaulting Bank to make such Defaulted Advance. If the applicable Borrower shall so set off and otherwise apply the amount owed by the such Borrower to or for the account of such Defaulting Bank against the obligation of such Defaulting Bank to make any such Defaulted Advance on any date, the amount so set off and otherwise applied by the such Borrower shall constitute for all purposes of this Agreement and the Notes an Advance by such Defaulting Bank made on the date of such setoff. Such Advance shall be a Base Rate Advance and shall be considered, for all purposes of this Agreement, to comprise part of the Borrowing in connection with which such Defaulted Advance was originally required to have been made pursuant to Section 2.01 or Section 2.03(a), as the case may be2.01, even if the other Advances comprising such Borrowing shall be Eurocurrency Rate Advances on the date such Advance is deemed to be made pursuant to this Section 2.19(a2.16(a). The applicable Borrower shall notify the Administrative Agent at any time the such Borrower makes a setoff under this Section 2.19(a2.16(a) and shall specify in such notice (A) the name of the Defaulting Bank and the Defaulted Advance required to be made by such Defaulting Bank and (B) the amount set off and otherwise applied in respect of such Defaulted Advance pursuant to this Section 2.19(a2.16(a). Any part of such payment otherwise required to be made by the such Borrower to or for the account of such Defaulting Bank that is paid by the such Borrower, after giving effect to the amount set off and otherwise applied by the such Borrower pursuant to this Section 2.19(a2.16(a), shall be applied by the Administrative Agent as specified in Section 2.19(b2.16(b) or 2.19(c2.16(c).

Defaulting Banks. At such time as a Bank becomes a Defaulting Bank, such Defaulting Bank's right to vote on matters which are subject to the consent or approval of the Required Banks shall be immediately suspended until such time as the Bank is no longer a Defaulting Bank. If a Defaulting Bank has failed to fund its Commitment Percentage of any Loan and until such time as such Defaulting Bank subsequently funds its Commitment Percentage of such Loan, all sums owing to such Defaulting Bank hereunder shall be subordinated in right of payment, in full of all principal of, interest on and fees related to the Loans funded by the other Banks in connection with any such Loan in which a Defaulting Bank has not funded its Commitment Percentages (asuch principal, interest and fees being referred to as "Senior Loans" for purposes of this Subsection 11.10). All amounts paid by the Borrowers and otherwise due to be applied to sums due such Defaulting Bank pursuant to the terms hereof shall be distributed by the Agent to the other Banks in accordance with their respective Commitment Percentages (recalculated hereof to exclude the Defaulting Bank) If at any time until all Senior Loans have been paid in full. At that point the Defaulting Bank shall no longer be deemed a Defaulting Bank. After the Senior Loans have been paid in full equitable adjustments will be made in connection with future payments by the Borrower to the extent a portion of a Senior Loans had been repaid with amounts that otherwise would have been distributed to a Defaulting Bank but for the operations of this Section 11.0. This provision governs only the relationship among the Agent, each Defaulting Bank and the other Banks, nothing hereunder shall limit the obligation of the Borrowers to repay all Loans in accordance with the terms of this Credit Agreement. The provisions of this subsection 11.10 shall apply and be effective regardless of whether a Default or Event of Default occurs and is continuing, and notwithstanding (i) any Bank shall be a Defaulting Bankother provision of this Credit Agreement to the contrary, (ii) such Defaulting Bank shall owe a Defaulted Advance any instructions of the Borrowers as to the Borrower and their desired application of payments or (iii) the Borrower shall be required to make any payment hereunder or under any Note to or for the account suspension of such Defaulting Bank, then the Borrower may, so long =s right to vote on matters as no Event of Default shall have occurred and be continuing at such time and to the fullest extent permitted by applicable law, set off and otherwise apply the amount owed by the Borrower to or for the account of such Defaulting Bank against the obligation of such Defaulting Bank to make such Defaulted Advance. If the Borrower shall so set off and otherwise apply the amount owed by the Borrower to or for the account of such Defaulting Bank against the obligation of such Defaulting Bank to make any such Defaulted Advance on any date, the amount so set off and otherwise applied by the Borrower shall constitute for all purposes of this Agreement and the Notes an Advance by such Defaulting Bank made on the date of such setoff. Such Advance shall be a Base Rate Advance and shall be considered, for all purposes of this Agreement, to comprise part of the Borrowing in connection with which such Defaulted Advance was originally required to have been made pursuant to Section 2.01 or Section 2.03(a), as the case may be, even if the other Advances comprising such Borrowing shall be Eurocurrency Rate Advances on the date such Advance is deemed to be made pursuant to this Section 2.19(a). The Borrower shall notify the Administrative Agent at any time the Borrower makes a setoff under this Section 2.19(a) and shall specify in such notice (A) the name of the Defaulting Bank and the Defaulted Advance required to be made by such Defaulting Bank and (B) the amount set off and otherwise applied in respect of such Defaulted Advance pursuant to this Section 2.19(a). Any part of such payment otherwise required to be made by the Borrower to or for the account of such Defaulting Bank that is paid by the Borrower, after giving effect to the amount set off and otherwise applied by the Borrower pursuant to this Section 2.19(a), shall be applied by the Administrative Agent as specified in Section 2.19(b) or 2.19(c)provided above.