Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender: (a) commitment fees shall cease to accrue on the unused amount of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a); (b) the Revolving Commitment and Revolving Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided that any amendment, waiver or other modification requiring the consent of all Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereof; (c) if any Swingline Exposure or LC Exposure exists at the time such Revolving Lender becomes a Defaulting Lender then: (i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the Non-Defaulting Lenders in accordance with their respective Applicable Percentages (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph (c), the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated disregarding the Revolving Commitments of the Defaulting Lenders at such time) but only to the extent that the sum of all Non-Defaulting Lenders’ Revolving Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the sum of all Non-Defaulting Lenders’ Revolving Commitments; (ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent (A) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (B) second, cash collateralize for the benefit of the Issuing Banks the portion of such Defaulting Lender’s LC Exposure that has not been reallocated in accordance with the procedures set forth in Section 2.05(i) for so long as such LC Exposure is outstanding; (iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower shall not be required to pay participation fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC Exposure is cash collateralized; (iv) if any portion of the LC Exposure of such Defaulting Lender is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(b) shall be adjusted to give effect to such reallocation; and (v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all participation fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and (d) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless in each case it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure or LC Exposure, as applicable, will be fully covered by the Revolving Commitments of the Non-Defaulting Lenders and/or cash collateral provided by the Borrower in accordance with Section 2.20(c), and participating interests in any such funded Swingline Loan or in any such issued, amended, reviewed or extended Letter of Credit will be allocated among the Non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein). In the event that (x) a Bankruptcy Event with respect to a Revolving Lender Parent shall have occurred following the date hereof and for so long as such Bankruptcy Event shall continue or (y) the Swingline Lender or any Issuing Bank has a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan, and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless the Swingline Lender or such Issuing Bank, as the case may be, shall have entered into arrangements with the Borrower or such Revolving Lender satisfactory to the Swingline Lender or such Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the Borrower, the Swingline Lender and each Issuing Bank each agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender (a “Restored Lender”), then the Swingline Exposure and LC Exposure of the Revolving Lenders shall be reallocated in accordance with their Applicable Percentages and on such date such Restored Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Restored Lender to hold such Loans in accordance with its Applicable Percentage (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph, the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated including the Revolving Commitment of such Restored Lender but disregarding the Revolving Commitments of the Defaulting Lenders at such time).
Appears in 3 contracts
Sources: Credit Agreement (NCR Corp), Credit Agreement (NCR Corp), Credit Agreement (NCR Corp)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unused amount of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a);
(b) the Revolving Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.0211.02); provided provided, that any this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of all Lenders such Lender or all Lenders each Lender affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereofthereby;
(c) if any Swingline Exposure or LC Exposure exists at the time such Revolving Lender becomes a Defaulting Lender then:
(i) so long as no Default shall be continuing, all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the Nonnon-Defaulting Lenders in accordance with their respective Applicable Percentages (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph (c), the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated disregarding the Revolving Commitments of the Defaulting Lenders at such time) but only to the extent that the sum of all Nonnon-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline LC Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments and to the extent the sum of each non-Defaulting Lender’s Revolving Credit Exposure and LC Exposure does not exceed the sum of all Nonsuch non-Defaulting Lenders’ Revolving CommitmentsLender’s Commitment;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one (1) Business Day following notice by the Administrative Agent (A) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (B) second, cash collateralize for the benefit of the Issuing Banks applicable LC Bank only the portion of Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure that has not been reallocated (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in the last paragraph of Section 2.05(i) 8.01 for so long as such LC Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower shall not be required to pay participation any fees to such Defaulting Lender pursuant to Section 2.12(b) or the applicable LC Bank pursuant to Section 2.12(b)(x) (solely with respect to such portion of any fronting fee), in each case with respect to such Defaulting Lender’s LC Exposure for so long as during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such the non-Defaulting Lender Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and Section 2.12(b) shall be adjusted to give effect to in accordance with such reallocation; andnon-Defaulting Lenders’ Applicable Percentages;
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing LC Bank or any other Lender hereunder, all participation Facility Fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s applicable LC Exposure attributable to Letters of Credit issued by each Issuing Bank) Bank until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(dvi) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and no Issuing LC Bank shall be required to issue, amend, renew amend or extend increase any Letter of Credit, unless in each case it is reasonably satisfied that (i) the related exposure and the Defaulting Lender’s then outstanding Swingline LC Exposure or LC Exposure, as applicable, will be fully 100% covered by the Revolving Commitments of the Nonnon-Defaulting Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 2.20(c), and (ii) participating interests in any such funded Swingline Loan newly issued or in any such issued, amended, reviewed or extended increased Letter of Credit will shall be allocated among the Nonnon-Defaulting Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein). In the event that If (xi) a Bankruptcy Event with respect to a Revolving Parent of any Lender Parent shall have occurred occur following the date hereof and for so long as such Bankruptcy Event event shall continue or (yii) the Swingline Lender or any Issuing LC Bank has a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan, and no Issuing LC Bank shall be required to issue, amend, renew amend or extend increase any Letter of Credit, unless the Swingline Lender or such Issuing applicable LC Bank, as the case may be, shall have entered into arrangements with the Borrower or such Revolving Lender Lender, satisfactory to the Swingline Lender or such Issuing Bank, as the case may be, applicable LC Bank to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the Borrower, Borrower and the Swingline Lender and ▇▇ ▇▇▇▇▇ each Issuing Bank each agree agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender (a “Restored Lender”), then the Swingline Exposure and LC Exposure of the Revolving Lenders shall be reallocated in accordance with their Applicable Percentages readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Restored Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Restored Lender to hold such Loans in accordance with its Applicable Percentage (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph, the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated including the Revolving Commitment of such Restored Lender but disregarding the Revolving Commitments of the Defaulting Lenders at such time).
Appears in 3 contracts
Sources: Revolving Credit Agreement (Columbia Pipeline Group, Inc.), Revolving Credit Agreement (Columbia Pipeline Group, Inc.), Revolving Credit Agreement (Columbia Pipeline Partners LP)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees Commitment Fees shall cease to accrue on the unused amount of the Revolving Commitment of such Defaulting Lender pursuant to as provided in Section 2.12(a2.09(a);
(b) the Revolving Commitment and Revolving Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided that any amendment, waiver or other modification requiring the consent of all Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereof;
(c) if any Swingline Exposure or LC Exposure exists at the time such a Revolving Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the Nonnon-Defaulting Lenders in accordance with their respective Applicable Percentages (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph (c), the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated disregarding the Revolving Commitments of the Defaulting Lenders at such time) but only to the extent that the sum of all Nonsuch reallocation does not, as to any non-Defaulting Lenders’ Revolving Exposures plus Lender, cause such non-Defaulting Lender’s Swingline Revolving Exposure and LC Exposure does not to exceed the sum of all Non-Defaulting Lenders’ its Revolving CommitmentsCommitment;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent (A) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (B) second, cash collateralize for the benefit of the Issuing Banks only the portion of Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure that has not been reallocated in accordance with the procedures set forth in Section 2.05(i2.19(j) for so long as such LC Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower shall not be required to pay participation any fees to such Defaulting Lender pursuant to Section 2.12(b2.09(c) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such the non-Defaulting Lender Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(aSection 2.09(a) and 2.12(bSection 2.09(c) shall be adjusted to give effect to in accordance with such reallocationnon-Defaulting Lenders’ Applicable Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all participation letter of credit fees payable under Section 2.12(b2.09(c) with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) Bank until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such a Revolving Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew amend or extend increase any Letter of Credit, unless in each case it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline LC Exposure or LC Exposure, as applicable, will be fully 100% covered by the Revolving Commitments of the Nonnon-Defaulting Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 2.20(c2.17(c), and participating interests in LC Exposure related to any such funded Swingline Loan newly issued or in any such issued, amended, reviewed or extended increased Letter of Credit will shall be allocated among the Nonnon-Defaulting Lenders in a manner consistent with Section 2.20(c)(i2.17(c)(i) (and such Defaulting Lender shall not participate therein). In the event that .
(xi) a Bankruptcy Event or a Bail-In Action with respect to a Revolving Lender Parent shall have occurred occur following the date hereof and for so long as such Bankruptcy Event event shall continue or (yii) the Swingline Lender or any Issuing Bank has a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Revolving Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan, and no Issuing Bank shall be required to issue, amend, renew amend or extend increase any Letter of Credit, unless the Swingline Lender or such Issuing Bank, as the case may be, Bank shall have entered into arrangements with the Borrower or such Revolving Lender Lender, satisfactory to the Swingline Lender or such Issuing Bank, as the case may be, Bank to defease any risk to it in respect of such Lender hereunder. In the event that each of the Administrative Agent, the Borrower, the Swingline Lender Borrower and each Issuing Bank each agree agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender (a “Restored Lender”), then the Swingline Exposure and LC Exposure of the Revolving Lenders shall be reallocated in accordance with their Applicable Percentages readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Restored Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Restored Lender to hold such Loans in accordance with its Applicable Percentage (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph, the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated including the Revolving Commitment of such Restored Lender but disregarding the Revolving Commitments of the Defaulting Lenders at such time).
Appears in 3 contracts
Sources: Credit Agreement (MSG Entertainment Spinco, Inc.), Credit Agreement (MSG Entertainment Spinco, Inc.), Credit Agreement (Madison Square Garden Co)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unused amount unfunded portion of the Revolving Loan Commitment of such Defaulting Lender pursuant to Section 2.12(a2.5(a);
(b) the Revolving Loan Commitment and Outstanding Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, the Required Revolving Lenders or any other requisite the Required Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 9.028.2); , provided that any amendmentwaiver, waiver amendment or other modification requiring the consent of all Lenders or all each affected Lender which affects such Defaulting Lender differently than other affected Lenders affected thereby shall, except as otherwise provided in Section 9.02, shall require the consent of such Defaulting Lender in accordance with the terms hereofLender;
(c) if any Swingline Exposure Swing Line Loans shall be outstanding or any LC Exposure exists Obligations shall exist at the time such Revolving a Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the Non-Defaulting Lenders in accordance with their respective Applicable Percentages (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph (c), the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated disregarding the Revolving Commitments of the Defaulting Lenders at such time) but only to the extent that the sum of all Non-Defaulting Lenders’ Revolving Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the sum of all Non-Defaulting Lenders’ Revolving Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower Company shall within one Business Day following notice by the Administrative Agent (Ax) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated outstanding Swing Line Loans and (By) second, cash collateralize for the benefit of the Issuing Banks the portion of such Defaulting Lender’s LC Exposure that has not been reallocated in accordance with the procedures set forth in Section 2.05(i) 8.1 for so long as such LC Exposure is outstanding;
(iiiii) if the Borrower Company cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (iii) above, the Borrower Company shall not be required to pay participation any fees to such Defaulting Lender pursuant to Section 2.12(b) 2.19.4 with respect to such portion of such Defaulting Lender’s LC Exposure for so long as during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such Defaulting Lender is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(b) shall be adjusted to give effect to such reallocation; and
(viii) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor not cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank the LC Issuer or any other Lender hereunder, all participation letter of credit fees payable under Section 2.12(b) 2.19.4 with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) Issuer until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and;
(d) so long as such Revolving any Lender is a Defaulting Lender, the Swingline Lender Issuing Bank shall not be required to fund issue or Modify any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of CreditFacility LC, unless in each case it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure or LC Exposure, as applicable, will be fully 100% covered by the Revolving Commitments of the Non-Defaulting Lenders and/or cash collateral provided by the Borrower Company in accordance with Section 2.20(c2.21(c), and participating interests in ; and
(e) any such funded Swingline Loan or in any such issued, amended, reviewed or extended Letter of Credit will be allocated among the Non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i) (and amount payable to such Defaulting Lender shall not participate therein). In hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 11.2 but excluding Section 2.20) shall, in lieu of being distributed to such Defaulting Lender, be retained by the event Agent in a segregated account and, subject to any applicable requirements of law, be applied at such time or times as may be determined by the Agent (i) first, to the payment of any amounts owing by such Defaulting Lender to the Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to the LC Issuer or Swing Line Lender hereunder, (iii) third, to the funding of any Revolving Loan or the funding or cash collateralization of any participating interest in any Swing Line Loan or Facility LC in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Agent, (iv) fourth, if so determined by the Agent and the Company, held in such account as cash collateral for future funding obligations of the Defaulting Lender under this Agreement, (v) fifth, pro rata, to the payment of any amounts owing to the Company or the Lenders as a result of any judgment of a court of competent jurisdiction obtained by the Company or any Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, and (vi) sixth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided, that if such payment is (x) a Bankruptcy Event prepayment of the principal amount of any Loans or Reimbursement Obligations in respect of draws under Facility LCs with respect to a Revolving Lender Parent shall have occurred following which the date hereof LC Issuer has funded its participation obligations and for so long as such Bankruptcy Event shall continue or (y) made at a time when the Swingline Lender or any Issuing Bank has a good faith belief that any Revolving Lender has defaulted conditions set forth in fulfilling its obligations under one or more other agreements in which Section 4.02 are satisfied, such Lender commits payment shall be applied solely to extend credit, prepay the Swingline Lender shall not be required to fund any Swingline LoanLoans of, and no Issuing Bank shall be required Reimbursement Obligations owed to, all Revolving Lenders that are not Defaulting Lenders pro rata prior to issue, amend, renew or extend any Letter of Credit, unless the Swingline Lender or such Issuing Bank, as the case may be, shall have entered into arrangements with the Borrower or such Revolving Lender satisfactory being applied to the Swingline Lender prepayment of any Loans, or such Issuing BankReimbursement Obligations owed to, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the Borrower, the Swingline Lender and each Issuing Bank each agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender (a “Restored Lender”), then the Swingline Exposure and LC Exposure of the Revolving Lenders shall be reallocated in accordance with their Applicable Percentages and on such date such Restored Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Restored Lender to hold such Loans in accordance with its Applicable Percentage (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph, the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated including the Revolving Commitment of such Restored Lender but disregarding the Revolving Commitments of the Defaulting Lenders at such time).
Appears in 3 contracts
Sources: Credit Agreement (Actuant Corp), Credit Agreement (Actuant Corp), Credit Agreement (Actuant Corp)
Defaulting Lenders. Notwithstanding (a) No Commitment of any provision Lender shall be increased or otherwise affected, and, except as otherwise expressly provided in this Section 4.3 or otherwise specifically provided herein, performance by the Borrower of its obligations shall not be excused or otherwise modified as a result of the operation of this Agreement Section 4.3. The rights and remedies against a Defaulting Lender under this Section 4.3 are in addition to any other rights and remedies which the contraryBorrower, if the Agent or any Revolving Lender becomes may have against such Defaulting Lender.
(b) If the Borrower and the Agent agree in writing in their reasonable determination that a Defaulting Lender should no longer be deemed to be a Defaulting Lender, then the following provisions shall apply for Agent will so long notify the parties hereto, whereupon as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unused amount of the Revolving Commitment effective date specified in such notice and subject to any conditions set forth therein, that Lender will, to the extent applicable, purchase that portion of such Defaulting Lender pursuant to Section 2.12(a);
(b) outstanding Commitments of the Revolving Commitment and Revolving Exposure of such Defaulting Lender shall not be included in determining whether the Required other Lenders or any take such other requisite Lenders have taken or actions as the Agent may take any action hereunder or under any other Loan Document (including any consent determine to any amendment, waiver or other modification pursuant be necessary to Section 9.02); provided that any amendment, waiver or other modification requiring cause the consent of all Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 9.02, require Commitments to be held on a pro rata basis by the consent of such Defaulting Lender in accordance with the terms hereof;
(c) if any Swingline Exposure or LC Exposure exists at the time such Revolving Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the Non-Defaulting Lenders in accordance with their respective Applicable Percentages (Percentages, whereupon such Lender will cease to be a Defaulting Lender; provided, that, no adjustments will be made retroactively or with the term “Applicable Percentage” meaning, duplication with respect to any Lender for purposes of reallocations to be fees accrued or payments made pursuant to this paragraph (c), the percentage by or on behalf of the Aggregate Revolving Commitment represented Borrower while that Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from such Lender’s Revolving Commitment having been a Defaulting Lender.
(c) Notwithstanding anything to the contrary contained in this Agreement, any payment of principal, interest, commitment fees or other amounts received by the Agent for the account of any Defaulting Lender under this Agreement (whether voluntary or mandatory, at maturity or otherwise) shall be applied at such time or times as may be determined by the time Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Agent hereunder; second, as the Borrower may request (so long as no Event of Default shall have occurred and be continuing), to the funding of any Committed Loan in respect of which that Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Agent; third, to the payment of any amounts owing to the Lenders as a result of any judgment of a court of competent jurisdiction obtained by any Lender against such Defaulting Lender as a result of such reallocation calculated disregarding Defaulting Lender’s breach of its obligations under this Agreement; fourth, so long as no Event of Default shall have occurred and be continuing, to the Revolving Commitments payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and fifth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided, that, if (x) such payment is a payment of the principal amount of any Committed Loan in respect of which such Defaulting Lenders Lender has not fully funded its appropriate share, and (y) such Committed Loans were made at a time when the applicable conditions set forth in Section 9 were satisfied or waived, such time) but only payment shall be applied solely to pay the extent that the sum Committed Loans of all Non-Defaulting Lenders’ Revolving Exposures plus Lenders on a pro rata basis prior to being applied to the payment of any Committed Loans of such Defaulting Lender’s Swingline Exposure Lender and LC Exposure does not exceed provided, further, that any amounts held as cash collateral for funding obligations of a Defaulting Lender shall be returned to such Defaulting Lender upon the sum termination of all Non-Defaulting Lenders’ Revolving Commitments;
(ii) if this Agreement and the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent (A) first, prepay the portion satisfaction of such Defaulting Lender’s Swingline Exposure obligations hereunder. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that has not been reallocated are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 4.3 shall be deemed paid to and (B) second, cash collateralize for the benefit of the Issuing Banks the portion of redirected by such Defaulting Lender’s LC Exposure that has not been reallocated in accordance with the procedures set forth in Section 2.05(i) for so long as such LC Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower shall not be required to pay participation fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such Defaulting Lender is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(b) shall be adjusted to give effect to such reallocation; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all participation fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless in each case it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure or LC Exposure, as applicable, will be fully covered by the Revolving Commitments of the Non-Defaulting Lenders and/or cash collateral provided by the Borrower in accordance with Section 2.20(c), and participating interests in any such funded Swingline Loan or in any such issued, amended, reviewed or extended Letter of Credit will be allocated among the Non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting each Lender shall not participate therein). In the event that (x) a Bankruptcy Event with respect to a Revolving Lender Parent shall have occurred following the date hereof and for so long as such Bankruptcy Event shall continue or (y) the Swingline Lender or any Issuing Bank has a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan, and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless the Swingline Lender or such Issuing Bank, as the case may be, shall have entered into arrangements with the Borrower or such Revolving Lender satisfactory to the Swingline Lender or such Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the Borrower, the Swingline Lender and each Issuing Bank each agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender (a “Restored Lender”), then the Swingline Exposure and LC Exposure of the Revolving Lenders shall be reallocated in accordance with their Applicable Percentages and on such date such Restored Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Restored Lender to hold such Loans in accordance with its Applicable Percentage (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph, the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated including the Revolving Commitment of such Restored Lender but disregarding the Revolving Commitments of the Defaulting Lenders at such time)irrevocably consents hereto.
Appears in 3 contracts
Sources: Revolving Credit Agreement (AerCap Holdings N.V.), Revolving Credit Agreement (AerCap Holdings N.V.), Revolving Credit Agreement (American International Group Inc)
Defaulting Lenders. (a) Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(ai) commitment fees The Non-Usage Fee shall cease to accrue on the unused amount of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a);2.5; and
(bii) the Revolving Commitment Commitments and Revolving Exposure Advances of such Defaulting Lender shall not be included in determining whether the Required all Lenders or any other requisite Lenders the Majority Lenders, as applicable, have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 9.0210.2); provided that any amendmentwaiver, waiver amendment or other modification requiring the consent of all Lenders or all each affected Lender which affects such Defaulting Lender differently than other affected Lenders affected thereby shall, except as otherwise provided in Section 9.02, shall require the consent of such Defaulting Lender in accordance with the terms hereof;Lender.
(cb) if any Swingline Exposure or LC Exposure exists at the time such Revolving Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the Non-Defaulting Lenders in accordance with their respective Applicable Percentages (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph (c), the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated disregarding the Revolving Commitments of the Defaulting Lenders at such time) but only to the extent that the sum of all Non-Defaulting Lenders’ Revolving Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the sum of all Non-Defaulting Lenders’ Revolving Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, If the Borrower shall within one Business Day following notice by and the Administrative Agent (A) first, prepay the portion of such Defaulting Lender’s Swingline Exposure agree in writing that has not been reallocated and (B) second, cash collateralize for the benefit of the Issuing Banks the portion of such Defaulting Lender’s LC Exposure that has not been reallocated in accordance with the procedures set forth in Section 2.05(i) for so long as such LC Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower shall not be required to pay participation fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such Defaulting a Lender is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(b) shall be adjusted to give effect to such reallocation; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all participation fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Revolving Lender is no longer a Defaulting Lender, the Swingline Lender Administrative Agent shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issueso notify the parties hereto, amend, renew or extend any Letter of Credit, unless in each case it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure or LC Exposure, whereupon as applicable, will be fully covered by the Revolving Commitments of the Non-Defaulting Lenders and/or cash collateral provided by the Borrower effective date specified in accordance with Section 2.20(c)such notice and subject to any conditions set forth therein, and participating interests in any such funded Swingline Loan or in any such issued, amended, reviewed or extended Letter of Credit will be allocated among the Non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein). In the event that (x) a Bankruptcy Event with respect to a Revolving Lender Parent shall have occurred following the date hereof and for so long as such Bankruptcy Event shall continue or (y) the Swingline Lender or any Issuing Bank has a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan, and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless the Swingline Lender or such Issuing Bank, as the case may be, shall have entered into arrangements with the Borrower or such Revolving Lender satisfactory to the Swingline Lender or such Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the Borrower, the Swingline Lender and each Issuing Bank each agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender (a “Restored Lender”), then the Swingline Exposure and LC Exposure of the Revolving Lenders shall be reallocated in accordance with their Applicable Percentages and on such date such Restored Lender shall purchase at par such of the Revolving Loans Advances of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Restored Lender to hold such Loans Advances in accordance with its Applicable Percentage (with the term “Applicable Percentage” meaningCommitment, whereupon such Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to any Lender for purposes of reallocations to be fees accrued or payments made pursuant to this paragraph, the percentage by or on behalf of the Aggregate Revolving Commitment represented Borrower while that Lender was a Defaulting Lender; provided, further, that except to the extent otherwise expressly agreed by such the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender having been a Defaulting Lender’s Revolving Commitment at the time of such reallocation calculated including the Revolving Commitment of such Restored Lender but disregarding the Revolving Commitments of the Defaulting Lenders at such time).
Appears in 3 contracts
Sources: Credit Agreement (Home Point Capital Inc.), Credit Agreement (Home Point Capital Inc.), Credit Agreement (Home Point Capital Inc.)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(ai) commitment fees shall cease to accrue on the unused amount unfunded portion of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a)2.3 [Commitment Fees];
(bii) the Revolving Commitment and Revolving Exposure outstanding Loans of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.0211.1 [Modifications, Amendments or Waivers]); provided provided, that any this clause (ii) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of all Lenders such Lender or all Lenders each Lender directly affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereofthereby;
(ciii) if any Swingline Exposure Swing Loans are outstanding or LC Exposure exists any Letter of Credit Obligations exist at the time such Revolving Lender becomes a Defaulting Lender Lender, then:
(ia) all or any part of the Swingline Exposure outstanding Swing Loans and LC Exposure Letter of Credit Obligations of such Defaulting Lender shall be reallocated among the Nonnon-Defaulting Lenders in accordance with their respective Applicable Percentages (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph (c), the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated disregarding the Revolving Commitments of the Defaulting Lenders at such time) Ratable Shares but only to the extent that (x) the sum of all Non-Defaulting Lenders’ Revolving Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure Facility Usage does not exceed the sum total of all Nonnon-Defaulting Lenders’ ' Revolving Credit Commitments, and (y) no Potential Default or Event of Default has occurred and is continuing at such time;
(iib) if the reallocation described in clause (ia) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent (Ax) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated outstanding Swing Loans, and (By) second, cash collateralize for the benefit of the Issuing Banks Lender the portion of Borrower's obligations corresponding to such Defaulting Lender’s LC Exposure that has not been reallocated 's Letter of Credit Obligations (after giving effect to any partial reallocation pursuant to clause (a) above) in accordance with a deposit account held at the procedures set forth in Section 2.05(i) Administrative Agent for so long as such LC Exposure is Letter of Credit Obligations are outstanding;
(iiic) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure 's Letter of Credit Obligations pursuant to clause (iib) above, the Borrower shall not be required to pay participation any fees to such Defaulting Lender pursuant to Section 2.12(b) 2.9.2 [Letter of Credit Fees] with respect to such portion Defaulting Lender's Letter of Credit Obligations during the period such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC Exposure is 's Letter of Credit Obligations are cash collateralized;
(ivd) if any portion the Letter of Credit Obligations of the LC Exposure of such non-Defaulting Lender is Lenders are reallocated pursuant to clause (ia) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(b) Section 2.9.2 [Letter of Credit Fees] shall be adjusted to give effect to in accordance with such reallocationnon-Defaulting Lenders' Ratable Share; and
(ve) if all or any portion of such Defaulting Lender’s LC Exposure is 's Letter of Credit Obligations are neither reallocated nor cash collateralized pursuant to clause (ia) or (iib) above, then, without prejudice to any rights or remedies of any the Issuing Bank Lender or any other Lender hereunder, all participation fees Letter of Credit Fees payable under Section 2.12(b) 2.9.2 [Letter of Credit Fees] with respect to such Defaulting Lender’s LC Exposure 's Letter of Credit Obligations shall be payable to the Issuing Banks Lender (and allocated among them ratably based on the amount of not to such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is Letter of Credit Obligations are reallocated and/or cash collateralized; and
(div) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lender PNC shall not be required to fund any Swingline Loan Swing Loans and no the Issuing Bank Lender shall not be required to issue, amend, renew amend or extend increase any Letter of Credit, unless in each case it the Issuing Lender is satisfied that the related exposure and the Defaulting Lender’s 's then outstanding Swingline Exposure or LC Exposure, as applicable, Letter of Credit Obligations will be fully 100% covered by the Revolving Credit Commitments of the Nonnon-Defaulting Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 2.20(c2.10(iii), and participating interests in any such funded Swingline newly made Swing Loan or in any such issued, amended, reviewed newly issued or extended increased Letter of Credit will shall be allocated among the Nonnon-Defaulting Lenders in a manner consistent with Section 2.20(c)(i2.10(iii)(a) (and such Defaulting Lender shall not participate therein). In the event that If (xi) a Bankruptcy Event with respect to a Revolving parent company of any Lender Parent shall have occurred occur following the date hereof and for so long as such Bankruptcy Event event shall continue continue, or (yii) PNC or the Swingline Issuing Lender or any Issuing Bank has a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender PNC shall not be required to fund any Swingline Loan, Swing Loan and no the Issuing Bank Lender shall not be required to issue, amend, renew amend or extend increase any Letter of Credit, unless PNC or the Swingline Lender or such Issuing BankLender, as the case may be, shall have entered into arrangements with the Borrower or such Revolving Lender Lender, satisfactory to PNC or the Swingline Lender or such Issuing BankLender, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the Borrower, PNC and the Swingline Issuing Lender and each Issuing Bank each agree in writing that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender (a “Restored Lender”), then the Swingline Exposure Administrative Agent will so notify the parties hereto, and LC Exposure the Ratable Share of the Revolving Swing Loans and Letter of Credit Obligations of the Lenders shall be reallocated in accordance with their Applicable Percentages readjusted to reflect the inclusion of such Lender's Commitment, and on such date such Restored Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Swing Loans) as the Administrative Agent shall determine may be necessary in order for such Restored Lender to hold such Loans in accordance with its Applicable Percentage (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph, the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated including the Revolving Commitment of such Restored Lender but disregarding the Revolving Commitments of the Defaulting Lenders at such time)Ratable Share.
Appears in 3 contracts
Sources: Credit Agreement (K12 Inc), Credit Agreement (New Jersey Resources Corp), Revolving Credit Facility (New Jersey Resources Corp)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unused amount of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a2.8(a);.
(b) the Revolving Commitment and Revolving Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.029.1); provided that any amendment, waiver or other modification requiring the consent of all Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 9.029.1, require the consent of such Defaulting Lender in accordance with the terms hereof;
(c) if any Swingline Exposure or LC Exposure exists at the time such Revolving Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender (other than any portion of such LC Exposure attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.3(e) and 2.3(f)) shall be reallocated among the Non-Defaulting Lenders in accordance with their respective Applicable Percentages (with the term “Applicable Percentage” meaningPro Rata Shares, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph (c), the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated disregarding the Revolving Commitments of the Defaulting Lenders at such time) but only to the extent that the sum of all Non-Defaulting Lenders’ Revolving Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does would not exceed the sum of all Non-Defaulting Lenders’ Revolving Commitments; provided that no reallocation under this clause (i) shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that ▇▇▇▇▇▇ having become a Defaulting Lender, including any claim of a Non-Defaulting Lender as a result of such Non-Defaulting Lender’s increased exposure following such reallocation;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent (A) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (B) second, cash collateralize for the benefit of the Issuing Banks the portion of such Defaulting Lender’s LC Exposure (other than any portion thereof referred to in the parenthetical in such clause (i)) that has not been reallocated in accordance with the procedures set forth in Section 2.05(i2.3(i) for so long as such LC Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower shall not be required to pay participation fees to such Defaulting Lender pursuant to Section 2.12(b2.8(b) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such Defaulting Lender is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(aSection 2.8(a) and 2.12(b2.8(b) shall be adjusted to give effect to such reallocation; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all participation fees payable under Section 2.12(b2.8(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless unless, in each case case, it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline LC Exposure or LC Exposure, as applicable, will be fully covered by the Revolving Commitments of the Non-Defaulting Lenders and/or cash collateral provided by the Borrower in accordance with Section 2.20(c), and participating interests in any such funded Swingline Loan or in any such issued, amended, reviewed renewed or extended Letter of Credit will be allocated among the Non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein). In the event that (xi) a Bankruptcy Event or a Bail-In Action with respect to a Revolving Lender Parent shall have occurred following the date hereof and for so long as such Bankruptcy Event event shall continue or (yii) the Swingline Lender or any Issuing Bank has a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan, and no such Issuing Bank shall not be required to issue, amend, renew or extend any Letter of Credit, unless the Swingline Lender or such Issuing Bank, as the case may be, Bank shall have entered into arrangements with the Borrower or such Revolving the applicable Lender satisfactory to the Swingline Lender or such Issuing Bank, as the case may be, Bank to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the Borrower, the Swingline Lender Borrower and each Issuing Bank each agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender (a “Restored Lender”), then the Swingline Exposure and LC Exposure of the Revolving Lenders shall be reallocated in accordance with their Applicable Percentages readjusted to reflect the inclusion of such ▇▇▇▇▇▇’s Commitment and on such date such Restored Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Restored Lender to hold such Loans in accordance with its Applicable Percentage (with the term “Applicable Percentage” meaning, Pro Rata Share; provided that no adjustments will be made retroactively with respect to any Lender for purposes of reallocations to be fees accrued or payments made pursuant to this paragraph, the percentage by or on behalf of the Aggregate Revolving Commitment represented Borrower while such Lender was a Defaulting Lender; provided further that, except as otherwise expressly agreed by the affected parties, no change hereunder from a Defaulting Lender to a Non-Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from such ▇▇▇▇▇▇’s having been a Defaulting Lender’s Revolving Commitment at the time of such reallocation calculated including the Revolving Commitment of such Restored Lender but disregarding the Revolving Commitments of the Defaulting Lenders at such time).
Appears in 2 contracts
Sources: Credit Agreement (FTAI Aviation Ltd.), Credit Agreement (Fortress Transportation & Infrastructure Investors LLC)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(ai) commitment fees shall cease to accrue on the unused amount unfunded portion of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a)2.09;
(bii) the Revolving Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided that any amendment, waiver or other modification requiring the consent of all Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereofhereunder;
(ciii) if any Swingline Exposure or LC Exposure exists Swing Line Loans shall be outstanding at the time such Revolving a Lender becomes a Defaulting Lender then:
(iA) all or any part of the Swingline Exposure unfunded participations in and LC Exposure of commitments with respect to such Defaulting Lender Swing Line Loans shall be reallocated among the Nonnon-Defaulting Lenders in accordance with their respective Applicable Percentages (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph (c), the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated disregarding the Revolving Commitments of the Defaulting Lenders at such time) pro rata Credit Exposures but only to the extent that (x) the sum of all Nonnon-Defaulting Lenders’ Revolving Exposures Credit Exposure plus such Defaulting Lender’s Swingline Exposure Lenders’ Loans and LC Exposure participations in and commitments with respect to Loans does not exceed the sum total of all Nonnon-Defaulting Lenders’ Revolving Commitments;Lender’s Commitments and no individual Lender’s Credit Exposure exceeds its Commitment and (y) the conditions set forth in Article IV are satisfied at such time.
(iiB) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one (1) Business Day following notice by the Administrative Agent (A) firstAgent, prepay the portion of such Defaulting Lender’s Swingline Exposure outstanding Swing Line Loans that has were not been reallocated and (B) second, cash collateralize for the benefit of the Issuing Banks the portion of such Defaulting Lender’s LC Exposure that has not been reallocated in accordance with the procedures set forth in Section 2.05(i) for so long as such LC Exposure is outstandingreallocated;
(iiiiv) if the Borrower cash collateralizes any portion of amount payable to such Defaulting Lender’s LC Exposure pursuant to clause Lender hereunder (ii) abovewhether on account of principal, the Borrower shall not interest, fees or otherwise and including any amount that would otherwise be required to pay participation fees payable to such Defaulting Lender pursuant to Section 2.12(b2.15 but excluding Section 2.16) with respect shall, in lieu of being distributed to such Defaulting Lender, be retained by the Administrative Agent in a segregated account and, subject to any applicable requirements of law, be applied at such time or times as may be determined by the Administrative Agent (i) first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder, (ii) second, to the payment of any amounts owing by such Defaulting Lender to the Swing Line Lender hereunder, (iii) third, to the funding of any Loan or the funding of any participating interest in any Swing Line Loan or in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (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 Lender under this Agreement, (v) fifth, to the payment of any amounts owing to the Borrower or the Lenders as a result of any judgment of a court of competent jurisdiction obtained by the Borrower or any Lender against such Defaulting Lender as a result of such Defaulting Lender’s LC Exposure for breach of its obligations under this Agreement, and (vi) sixth, if so long as such determined by the Administrative Agent, distributed to the Lenders other than the Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion Lender until the ratio of the LC Credit Exposure of such Defaulting Lender is reallocated pursuant to clause (i) above, then the fees payable Lenders to the Lenders pursuant aggregate outstanding Credit Exposure equals such ratio immediately prior to Sections 2.12(a) and 2.12(b) shall be adjusted to give effect to such reallocation; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all participation fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless in each case it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure failure to fund any portion of any Loans or LC Exposureparticipations in Swing Line Loans and (vii) seventh, as applicable, will be fully covered by the Revolving Commitments of the Non-Defaulting Lenders and/or cash collateral provided by the Borrower in accordance with Section 2.20(c), and participating interests in any such funded Swingline Loan or in any such issued, amended, reviewed or extended Letter of Credit will be allocated among the Non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i) (and to such Defaulting Lender shall not participate therein). In or as otherwise directed by a court of competent jurisdiction; provided, that if such payment is a prepayment of the event that (x) a Bankruptcy Event with respect to a Revolving Lender Parent shall have occurred following the date hereof and for so long as principal amount of any Loans, such Bankruptcy Event shall continue or (y) the Swingline Lender or any Issuing Bank has a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan, and no Issuing Bank payment shall be required applied solely to issueprepay the Loans of, amend, renew or extend any Letter of Credit, unless the Swingline Lender or such Issuing Bank, as the case may be, shall have entered into arrangements with the Borrower or such Revolving Lender satisfactory all Lenders that are not Defaulting Lenders pro rata prior to being applied to the Swingline Lender prepayment of any Loans, or such Issuing Bankowed to, as the case may be, to defease any risk to it in respect of such Lender hereunderDefaulting Lender. In the event that the Administrative Agent, the Borrower, Borrower and the Swingline Swing Line Lender and each Issuing Bank each agree agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender (a “Restored Lender”), then the Swingline Exposure and LC Swing Line Exposure of the Revolving Lenders shall be reallocated in accordance with their Applicable Percentages readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Restored Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Restored Lender to hold such the Loans in accordance with its Applicable Percentage (with the term pro rata share. For purposes of this Section 2.18, “Applicable PercentageSwing Line Exposure” meaningshall mean, with respect to any Defaulting Lender for purposes of reallocations to be made pursuant to this paragraphat any time, the percentage such Defaulting Lender’s pro rata share of the Aggregate Revolving Commitment represented aggregate principal amount of all Swing Line Loans outstanding at such time. Nothing contained in the foregoing shall be deemed to constitute a waiver by such Lender’s Revolving Commitment the Borrower of any of its rights or remedies (whether in equity or at law) against any Lender which fails to fund any of its Loans hereunder at the time or in the amount required to be funded under the terms of such reallocation calculated including the Revolving Commitment of such Restored Lender but disregarding the Revolving Commitments of the Defaulting Lenders at such time)this Agreement.
Appears in 2 contracts
Sources: Credit Agreement (Nelnet Inc), Credit Agreement (Nelnet Inc)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unused amount of the Revolving Commitment of such Such Defaulting Lender pursuant shall not have the right to vote on any issue on which voting is required (other than to the extent expressly provided in Section 2.12(a10.02(b);
(b) and the Revolving Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Majority Lenders or any other requisite the Super-Majority Lenders have taken or may take any action hereunder hereunder.
(b) If a Defaulting Lender (or under any other Loan Document (including any consent a Lender who would be a Defaulting Lender but for the expiration of the relevant grace period) as a result of the exercise of a set-off shall have received a payment in respect of its Credit Exposure which results in its Credit Exposure being less than its Applicable Percentage of the Aggregate Credit Exposure, then no payments will be made to any amendment, waiver or other modification pursuant to Section 9.02); provided that any amendment, waiver or other modification requiring the consent of all Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereof;
(c) if any Swingline Exposure or LC Exposure exists at the until such time such Revolving Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of as such Defaulting Lender shall be reallocated among have complied with this Section 2.15 and all amounts due and owing to the Non-Defaulting Lenders has been equalized in accordance with their each Lender’s respective Applicable Percentages (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph (c), the percentage pro rata share of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment Obligations. Further, if at any time prior to the time of such reallocation calculated disregarding the Revolving Commitments acceleration or maturity of the Defaulting Lenders at such time) but only to the extent that the sum of all Non-Defaulting Lenders’ Revolving Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the sum of all Non-Defaulting Lenders’ Revolving Commitments;
(ii) if the reallocation described in clause (i) above cannotLoans, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent (A) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (B) second, cash collateralize for the benefit of the Issuing Banks the portion of such Defaulting Lender’s LC Exposure that has not been reallocated in accordance with the procedures set forth in Section 2.05(i) for so long as such LC Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower shall not be required to pay participation fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such Defaulting Lender is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(b) shall be adjusted to give effect to such reallocation; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all participation fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless in each case it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure or LC Exposure, as applicable, will be fully covered by the Revolving Commitments of the Non-Defaulting Lenders and/or cash collateral provided by the Borrower in accordance with Section 2.20(c), and participating interests in any such funded Swingline Loan or in any such issued, amended, reviewed or extended Letter of Credit will be allocated among the Non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein). In the event that (x) a Bankruptcy Event with respect to a Revolving Lender Parent shall have occurred following the date hereof and for so long as such Bankruptcy Event shall continue or (y) the Swingline Lender or any Issuing Bank has a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan, and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless the Swingline Lender or such Issuing Bank, as the case may be, shall have entered into arrangements with the Borrower or such Revolving Lender satisfactory to the Swingline Lender or such Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the Borrower, the Swingline Lender and each Issuing Bank each agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender (a “Restored Lender”), then the Swingline Exposure and LC Exposure of the Revolving Lenders shall be reallocated in accordance with their Applicable Percentages and on such date such Restored Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may receive any payment in respect of principal of a Loan while one or more Defaulting Lenders shall be necessary party to this Agreement, the Administrative Agent shall apply such payment first to the Borrowing(s) for which such Defaulting Lender(s) shall have failed to fund its pro rata share until such time as such Borrowing(s) are paid in order for such Restored full or each Lender to hold such Loans in accordance with (including each Defaulting Lender) is owed its Applicable Percentage (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph, the percentage all Loans then outstanding. After acceleration or maturity of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at Loans, subject to the time first sentence of such reallocation calculated including the Revolving Commitment of such Restored Lender but disregarding the Revolving Commitments of the Defaulting Lenders at such timethis Section 2.15(b), all principal will be paid ratably as provided in Section 2.15(b).
Appears in 2 contracts
Sources: Term Loan Credit Agreement (Exco Resources Inc), Term Loan Credit Agreement (Exco Resources Inc)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(ai) commitment fees shall cease to accrue on the unused amount unfunded portion of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a)2.3 [Commitment Fees];
(bii) the Revolving Commitment and Revolving Exposure outstanding Loans of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.0212.1 [Modifications, Amendments or Waivers]); provided provided, that any this clause (ii) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of all Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with pursuant to the terms hereofof this Agreement;
(ciii) if any Swingline Exposure Swing Loans are outstanding or LC Exposure exists any Letter of Credit Obligations exist at the time such Revolving Lender becomes a Defaulting Lender Lender, then:
(iA) all or any part of the Swingline Exposure outstanding Swing Loans and LC Exposure Letter of Credit Obligations of such Defaulting Lender shall be reallocated among the Nonnon-Defaulting Lenders in accordance with their respective Applicable Percentages (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph (c), the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated disregarding the Revolving Commitments of the Defaulting Lenders at such time) Ratable Shares but only to the extent that (x) the sum Revolving Facility Usage does not exceed the total of all Nonnon-Defaulting Lenders’ Revolving Exposures plus Credit Commitments, and (y) no Potential Default or Event of Default has occurred and is continuing at such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the sum of all Non-Defaulting Lenders’ Revolving Commitmentstime;
(iiB) if the reallocation described in clause (iA) above cannot, or can only partially, be effected, the Borrower Borrowers shall within one Business Day following notice by the Administrative Agent (Ax) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated outstanding Swing Loans, and (By) second, cash collateralize for the benefit of the Issuing Banks Lender the portion of Borrowers’ obligations corresponding to such Defaulting Lender’s LC Exposure that has not been reallocated Letter of Credit Obligations (after giving effect to any partial reallocation pursuant to clause (a) above) in accordance with a deposit account held at the procedures set forth in Section 2.05(i) Administrative Agent for so long as such LC Exposure is Letter of Credit Obligations are outstanding;
(iiiC) if the Borrower Borrowers cash collateralizes collateralize any portion of such Defaulting Lender’s LC Exposure Letter of Credit Obligations pursuant to clause (iiB) above, the Borrower Borrowers shall not be required to pay participation any fees to such Defaulting Lender pursuant to Section 2.12(b) 2.7.2 [Letter of Credit Fees] with respect to such portion Defaulting Lender’s Letter of Credit Obligations during the period such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC Exposure is Letter of Credit Obligations are cash collateralized;
(ivD) if any portion the Letter of Credit Obligations of the LC Exposure of such non-Defaulting Lender is Lenders are reallocated pursuant to clause (iA) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(b) Section 2.7.2 [Letter of Credit Fees] shall be adjusted to give effect to in accordance with such reallocationnon-Defaulting Lenders’ Ratable Share; and
(vE) if all or any portion of such Defaulting Lender▇▇▇▇▇▇’s LC Exposure is Letter of Credit Obligations are neither reallocated nor cash collateralized pursuant to clause (iA) or (iiB) above, then, without prejudice to any rights or remedies of any the Issuing Bank Lender or any other Lender hereunder, all participation fees Letter of Credit Fees payable under Section 2.12(b) 2.7.2 [Letter of Credit Fees] with respect to such Defaulting Lender’s LC Exposure Letter of Credit Obligations shall be payable to the Issuing Banks Lender (and allocated among them ratably based on the amount of not to such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is Letter of Credit Obligations are reallocated and/or cash collateralized; and
(div) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lender PNC shall not be required to fund any Swingline Loan Swing Loans and no the Issuing Bank Lender shall not be required to issue, amend, renew amend or extend increase any Letter of Credit, unless in each case it the Issuing Lender is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure or LC Exposure, as applicable, Letter of Credit Obligations will be fully one hundred percent (100%) covered by the Revolving Credit Commitments of the Nonnon-Defaulting Lenders and/or cash collateral will be provided by the Borrower Borrowers in accordance with Section 2.20(c6.13(iii), and participating interests in any such funded Swingline newly made Swing Loan or in any such issued, amended, reviewed newly issued or extended increased Letter of Credit will shall be allocated among the Nonnon-Defaulting Lenders in a manner consistent with Section 2.20(c)(i6.13(iii)(A) (and such Defaulting Lender shall not participate therein). In the event that If (xi) a Bankruptcy Event with respect to a Revolving parent company of any Lender Parent shall have occurred occur following the date hereof and for so long as such Bankruptcy Event event shall continue continue, or (yii) PNC or the Swingline Issuing Lender or any Issuing Bank has a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender PNC shall not be required to fund any Swingline Loan, Swing Loan and no the Issuing Bank Lender shall not be required to issue, amend, renew amend or extend increase any Letter of Credit, unless PNC or the Swingline Lender or such Issuing BankLender, as the case may be, shall have entered into arrangements with the Borrower Borrowers or such Revolving Lender Lender, satisfactory to PNC or the Swingline Lender or such Issuing BankLender, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the BorrowerBorrowing Agent, PNC and the Swingline Issuing Lender and each Issuing Bank each agree in writing that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender (a “Restored Lender”), then the Swingline Exposure Administrative Agent will so notify the parties hereto, and LC Exposure the Ratable Share of the Revolving Swing Loans and Letter of Credit Obligations of the Lenders shall be reallocated in accordance with their Applicable Percentages readjusted to reflect the inclusion of such Lender’s Commitment, and on such date such Restored Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Swing Loans) as the Administrative Agent shall determine may be necessary in order for such Restored Lender to hold such Loans in accordance with its Applicable Percentage (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph, the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated including the Revolving Commitment of such Restored Lender but disregarding the Revolving Commitments of the Defaulting Lenders at such time)Ratable Share.
Appears in 2 contracts
Sources: Credit Agreement (Mastech Digital, Inc.), Credit Agreement (Mastech Digital, Inc.)
Defaulting Lenders. Notwithstanding any provision of this Agreement anything contained herein to the contrary, if any Revolving Lender becomes a Defaulting Lender, then in the following provisions shall apply for so long as such Revolving Lender is case of a Defaulting Lender:
(ai) commitment fees shall cease the L/C Issuer may require, the Borrower or Defaulting Lender to accrue on provide Adequate Assurance, which may include cash collateral, for the unused amount Defaulting Lender’s share of the Revolving Commitment L/C Obligations as a condition to the issuance or extension of such Defaulting Lender pursuant to Letters of Credit, as referenced in Section 2.12(a2.03(a)(iii)(E);
(bii) the Swing Line Lender may require, the Borrower or Defaulting Lender to provide Adequate Assurance, which may include cash collateral, for the Defaulting Lender’s risk participation share of Swing Line Loans as a condition to the making or extension of Swing Line Loans, as referenced in Section 2.04(b);
(iii) the Defaulting Lender may be replaced as provided in Section 11.14;
(iv) all payments of principal, interest, fees and other amounts owing to a Defaulting Lender will be paid into an account or subaccount with the Administrative Agent for the benefit of the Defaulting Lender (collectively, the “Defaulting Lender Account”) and held to secure the Defaulting Lender’s obligations hereunder. Amounts held in the Defaulting Lender Account will be used first to reimburse the Administrative Agent and Collateral Agent for the Defaulting Lender’s share of fees and expenses, second as cash collateral for the Defaulting Lender’s share of outstanding L/C Obligations and Swing Line Loans, third to fund the Defaulting Lender’s share of Revolving Commitment Loan advances and fourth as cash collateral for the Defaulting Lender’s unfunded share of the Revolving Exposure Commitments. Any amounts remaining in the Defaulting Lender Account after payment in full of such the Defaulting Lender’s obligations and termination of the commitments under this Agreement and the other Loan Documents will be paid over to the Defaulting Lender;
(v) the Defaulting Lender shall not be included in determining whether the Required Lenders entitled to vote or any other requisite Lenders have taken receive a commitment fee, facility fee or may take any action letter of credit fee hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided that any amendment, waiver or other modification requiring the consent of all Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereof;
(c) if any Swingline Exposure or LC Exposure exists at the time such Revolving Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the Non-Defaulting Lenders in accordance with their respective Applicable Percentages (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph (c), the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated disregarding the Revolving Commitments of the Defaulting Lenders at such time) but only to the extent that the sum of all Non-Defaulting Lenders’ Revolving Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the sum of all Non-Defaulting Lenders’ Revolving Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent (A) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (B) second, cash collateralize for the benefit of the Issuing Banks the portion of such Defaulting Lender’s LC Exposure that has not been reallocated in accordance with the procedures set forth in Section 2.05(i) for so long as such LC Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such it shall be a Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower shall not be required to pay participation fees to such Defaulting Lender pursuant to except as provided in Section 2.12(b) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such Defaulting Lender is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(b) shall be adjusted to give effect to such reallocation11.01; and
(vvi) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant subject to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all participation fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender2.14(c), the Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless in each case it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure or LC Exposure, as applicable, will be fully covered by the Revolving Commitments of the Non-Defaulting Lenders and/or cash collateral provided by the Borrower in accordance with Section 2.20(c), and participating interests in any such funded Swingline Loan or in any such issued, amended, reviewed or extended Letter of Credit will be allocated among the Non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein). In the event that (x) a Bankruptcy Event with respect to a Revolving Lender Parent shall have occurred following the date hereof and for so long as such Bankruptcy Event shall continue or (y) the Swingline Lender or any Issuing Bank has a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan, and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless the Swingline Lender or such Issuing Bank, as the case may be, shall have entered into arrangements with the Borrower or such Revolving Lender satisfactory to the Swingline Lender or such Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the Borrower, the Swingline Lender and each Issuing Bank each agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender (a “Restored Lender”), then the Swingline Exposure and LC Exposure of the Revolving Lenders shall be reallocated in accordance with their Applicable Percentages and on such date such Restored Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Restored Lender to hold such Loans in accordance with its Applicable Percentage (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph, the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated including the Revolving Commitment of such Restored Lender but disregarding the Revolving Commitments commitments of the Defaulting Lenders at such time)Lender may be reduced or terminated as provided in Section 2.06 on a non-ratable basis.
Appears in 2 contracts
Sources: Credit Agreement (Kraton Performance Polymers, Inc.), Credit Agreement (Kraton Polymers LLC)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unused amount of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a);
(b) the Revolving Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.0210.02); provided provided, that any this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of all Lenders such Lender or all Lenders each Lender affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereofthereby;
(c) if any Swingline Exposure or LC Exposure exists at the time such Revolving Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the Nonnon-Defaulting Lenders in accordance with their respective Applicable Percentages (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph (c), the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated disregarding the Revolving Commitments of the Defaulting Lenders at such time) but only to the extent that the sum of all Nonnon-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the sum total of all Nonnon-Defaulting Lenders’ Revolving Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower Company shall within one Business Day following notice by the U.S. Administrative Agent (Ax) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (By) second, cash collateralize for the benefit of each Issuing Bank only the Issuing Banks the portion of Company’s obligations corresponding to such Defaulting Lender’s LC Exposure that has not been reallocated (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.05(i) for so long as such LC Exposure is outstanding2.05(j);
(iii) if the Borrower Company cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower Company shall not be required to pay participation any fees to or for the benefit of such Defaulting Lender pursuant to Section 2.12(b2.12(c) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such the non-Defaulting Lender Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections Section 2.12(a) and 2.12(bSection 2.12(c) shall be adjusted to give effect to in accordance with such reallocationnon-Defaulting Lenders’ Applicable Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any the applicable Issuing Bank or any other Lender hereunder, all participation facility fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.12(b2.12(c) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) Bank until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and;
(d) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew amend or extend increase any Letter of Credit, unless in each case it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline LC Exposure or LC Exposure, as applicable, will be fully 100% covered by the Revolving Commitments of the Nonnon-Defaulting Lenders and/or cash collateral will be provided by the Borrower Company in accordance with Section 2.20(c2.22(c), and participating interests in any such funded newly made Swingline Loan or in any such issued, amended, reviewed newly issued or extended increased Letter of Credit will shall be allocated among the Nonnon-Defaulting Lenders in a manner consistent with Section 2.20(c)(i2.22(c)(i) (and such Defaulting Lender shall not participate therein). In ; and
(e) any payment of principal, interest, fees or other amounts received by either Agent for the event account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article VII or otherwise) or received by either Agent from a Defaulting Lender pursuant to Section 10.08 shall be applied at such time or times as may be determined by such Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Agents hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to the Issuing Banks or Swingline Lender hereunder; third, to be held as cash collateral for such Defaulting Lender’s LC Exposure other than any portion of such LC Exposure that has been reallocated to other Lenders or cash collateralized in accordance with the terms hereof; fourth, as the Borrower may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Applicable Agent; fifth, if so determined by the U.S. Administrative Agent and the Company, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) cash collateralize the future funding obligations of such Defaulting Lender of any participation in any Letter of Credit or Swingline Loan; sixth, to the payment of any amounts owing to the Lenders, the Issuing Banks or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, any Issuing Bank or the Swingline Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default exists, to the payment of any amounts owing to the Company as a result of any judgment of a court of competent jurisdiction obtained by the Company against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans or LC Disbursements in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 4.02 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and LC Disbursements owed to, all non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or LC Disbursements owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in LC Disbursements and Swingline Loans are held by the Lenders pro rata in accordance with the Commitments hereunder without giving effect to Section 2.22(c)(i). Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 2.22(e) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto. If (i) a Bankruptcy Event with respect to a Revolving Parent of any Lender Parent shall have occurred occur following the date hereof Effective Date and for so long as such Bankruptcy Event event shall continue or (yii) the Swingline Lender or any Issuing Bank has a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan, Loan and no Issuing Bank shall be required to issue, amend, renew amend or extend increase any Letter of Credit, unless the Swingline Lender or such the applicable Issuing Bank, as the case may be, shall have entered into arrangements with the Borrower Company or such Revolving Lender Lender, satisfactory to the Swingline Lender or such Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative each Agent, the BorrowerCompany, the Swingline Lender and each Issuing Bank each agree agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender (a “Restored Lender”), then the Swingline Exposure and LC Exposure of the Revolving Lenders shall be reallocated in accordance with their Applicable Percentages readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Restored Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Restored Lender to hold such Loans in accordance with its Applicable Percentage (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph, the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated including the Revolving Commitment of such Restored Lender but disregarding the Revolving Commitments of the Defaulting Lenders at such time).
Appears in 2 contracts
Sources: Credit Agreement (Sysco Corp), Credit Agreement (Sysco Corp)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unused amount unfunded portion of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a2.10(a);
(b) the Revolving Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Majority Lenders or any other requisite Required Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided, that, except as otherwise provided that any in Section 9.02, this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of all Lenders such Lender or all Lenders each Lender directly affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereofthereby;
(c) if any Swingline Exposure or LC Exposure exists at the time such Revolving Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and or LC Exposure (other than (A) the portion of such Swingline Exposure referred to in clause (b) of the definition of such term and (B) any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(d) or (e)) of such Defaulting Lender shall be reallocated (effective as of the date such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders in accordance with their respective Applicable Percentages (with for the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to such reallocation, such Defaulting Lender’s Commitment shall be made pursuant to this paragraph (cdisregarded in determining the non-Defaulting Lenders’ respective Applicable Percentages), the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated disregarding the Revolving Commitments of the Defaulting Lenders at such time) but only to the extent that (X) the sum of all Nonnon-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the sum total of all Nonnon-Defaulting Lenders’ Revolving Commitments, (Y) after giving effect to any such reallocation, no non-Defaulting Lender’s Credit Exposure shall exceed such non-Defaulting Lender’s Commitment and (Z) no Default or Event of Default has occurred and is continuing at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall shall, within one three (3) Business Day Days following written notice by the Administrative Agent (Ax) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (By) secondsecond cash collateralize, cash collateralize for the benefit of the applicable Issuing Banks Banks, the portion of Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure that has not been reallocated (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.05(i2.04(j) for so long as such Defaulting Lender’s LC Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower shall not be required to pay any participation fees to such Defaulting Lender pursuant to Section 2.12(b2.10(b) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such the non-Defaulting Lender Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(aSection 2.10(a) and 2.12(bSection 2.10(b) shall be adjusted to give in accordance with such non-Defaulting Lenders’ Applicable Percentages after giving effect to such reallocation; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all participation fees payable under Section 2.12(b2.10(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Banks (and allocated among them Banks, ratably based on the amount portion of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each such Issuing Bank) , until and to the extent that such LC Exposure is reallocated and/or cash collateralizedcollateralized pursuant to clause (i) or (ii) above; and
(d) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew amend or extend increase any Letter of Credit, unless in each case it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline LC Exposure or LC Exposure, as applicable, will be fully 100% covered by the Revolving Commitments of the Nonnon-Defaulting Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 2.20(c2.18(c), and Swingline Exposure related to any such newly made Swingline Loan and participating interests in any such funded Swingline Loan newly issued or in any such issued, amended, reviewed or extended increased Letter of Credit will shall be allocated among the Nonnon-Defaulting Lenders in a manner consistent with Section 2.20(c)(i2.18(c)(i) (and such Defaulting Lender shall not participate therein). In the event that .
(xi) a Bankruptcy Event or a Bail-In Action with respect to a Revolving Lender Parent shall have occurred occur following the date hereof and for so long as such Bankruptcy Event event shall continue or (yii) the any Swingline Lender or any Issuing Bank has a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan, Loan and no Issuing Bank shall be required to issue, amend, renew amend or extend increase any Letter of Credit, unless the Swingline Lender or such Issuing Bank, as the case may be, Bank shall have entered into arrangements with the Borrower or such Revolving Lender Lender, satisfactory to the Swingline Lender or such Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the Borrower, the Swingline Lender and each Issuing Bank each agree in writing that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender (a “Restored Lender”), then the Swingline Exposure and LC Exposure Exposures of the Revolving Lenders shall be reallocated in accordance with their Applicable Percentages readjusted to reflect the inclusion of such Lender’s Commitment, and on such date such Restored Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Restored Lender to hold such Loans in accordance with its Applicable Percentage (with the term “Applicable Percentage” meaning. The rights and remedies against, and with respect to any to, a Defaulting Lender for purposes of reallocations to be made pursuant to under this paragraphSection 2.18 are in addition to, and cumulative and not in limitation of, all other rights and remedies that the Administrative Agent and each Lender, each Issuing Bank, the percentage of the Aggregate Revolving Commitment represented by Borrower or any other Loan Party may at any time have against, or with respect to, such Defaulting Lender’s Revolving Commitment at the time of such reallocation calculated including the Revolving Commitment of such Restored Lender but disregarding the Revolving Commitments of the Defaulting Lenders at such time).
Appears in 2 contracts
Sources: Credit Agreement, Credit Agreement (Southwestern Energy Co)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees the Revolving Commitment Fees and the Delayed Draw Term Ticking Fees shall cease to accrue on the unused amount of the Revolving Commitment or on the Delayed Draw Term Commitment, as the case may be, of such Defaulting Lender pursuant to Section 2.12(a)Lender;
(b) the Revolving Commitment, the Revolving Exposure, the Term Commitment and Revolving Exposure the Term Loans of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.0210.02); provided that any amendment, waiver or other modification requiring the consent of all Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 9.0210.02, require the consent of such Defaulting Lender in accordance with the terms hereof;
(c) if any Swingline Exposure or LC Exposure exists at the time such any Revolving Lender becomes a Defaulting Lender Lender, then:
(i) all or any part of the Swingline Exposure (other than any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.21(c)) and LC Exposure of such Defaulting Lender (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.20(d) and 2.20(f)) shall be reallocated among the Non-Defaulting Revolving Lenders in accordance with their respective Applicable Percentages (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph (c), the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated disregarding the Revolving Commitments of the Defaulting Lenders at such time) but only to the extent that the sum of all Non-Defaulting Revolving Lenders’ Revolving Exposures plus such Defaulting Lender’s Swingline Exposure (excluding the portion thereof referred to above) and LC Exposure (excluding the portion thereof referred to above) does not exceed the sum of all Non-Defaulting Revolving Lenders’ Revolving Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the each Borrower shall within one Business Day following written notice by the Administrative Agent (A) first, prepay the portion of such Defaulting Lender’s Swingline Exposure attributable to Swingline Loans made to such Borrower (other than any portion thereof referred to in the parenthetical in such clause (i)) that has not been reallocated and (B) second, cash collateralize for the benefit of the Issuing Banks the portion of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued for the account of such Borrower (other than any portion thereof referred to in the parenthetical in such clause (i)) that has not been reallocated as set forth in such clause in accordance with the procedures set forth in Section 2.05(i2.20(n) for so long as such LC Exposure is outstanding;
(iii) if the Borrower Borrowers cash collateralizes collateralize any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower Borrowers shall not be required to pay participation fees to such Defaulting Lender pursuant to Section 2.12(b2.09(c) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such Defaulting Lender is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a2.09(a) and 2.12(b2.09(c) shall be adjusted to give effect to such reallocation; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure that is subject to reallocation pursuant to clause (i) above is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all participation fees payable under Section 2.12(b2.09(c) with respect to such Defaulting Lender’s portion of its LC Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s portion of the LC Exposure of such Defaulting Lender attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless unless, in each case case, it is satisfied that the related exposure and the such Defaulting Lender’s then outstanding Swingline Exposure or LC Exposure, as applicable, Exposure will be fully covered by the Revolving Commitments of the Non-Defaulting Revolving Lenders and/or cash collateral provided by the Borrower Borrowers in accordance with Section 2.20(c)clause (c) above, and participating interests in any such funded Swingline Loan or in any such issued, amended, reviewed renewed or extended Letter of Credit will be allocated among the Non-Defaulting Revolving Lenders in a manner consistent with Section 2.20(c)(iclause (c)(i) above (and such Defaulting Lender shall not participate therein). In the event that (x) a Bankruptcy Event with respect to a Lender Parent of a Revolving Lender Parent shall have occurred following the date hereof Effective Date and for so long as such Bankruptcy Event shall continue or (y) the Swingline Lender or any Issuing Bank has a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Revolving Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan, and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless unless, in each case, the Swingline Lender or such Issuing Bank, as the case may be, Bank shall have entered into arrangements with the Company and any other applicable Borrower or such Revolving Lender satisfactory to the Swingline Lender or such Issuing Bank, as the case may be, to defease any risk to it in respect of such Revolving Lender hereunder. In the event that the Administrative Agent, the BorrowerCompany, the Swingline Lender and each Issuing Bank each agree that a Defaulting Lender that is a Revolving Lender has adequately remedied all matters that caused such Revolving Lender to be a Defaulting Lender (a “Restored Lender”), then the Swingline Exposure and LC Exposure of the Revolving Lenders shall be reallocated in accordance with their Applicable Percentages readjusted to reflect the inclusion of such Revolving Lender’s Revolving Commitment and on such date such Restored Revolving Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may to be necessary in order for such Restored Revolving Lender to hold such Revolving Loans in accordance with its Applicable Percentage Percentage, and such Revolving Lender shall thereupon cease to be a Defaulting Lender (but shall not be entitled to receive any Revolving Commitment Fees accrued during the period when it was a Defaulting Lender, and all amendments, waivers or modifications effected without its consent in accordance with the term “Applicable Percentage” meaningprovisions of Section 10.02 and this Section during such period shall be binding on it). In the event that the Administrative Agent and the Company each agree that a Defaulting Lender that is a Term Lender has adequately remedied all matters that caused such Term Lender to be a Defaulting Lender, then on such date such Term Lender shall take such actions as the Administrative Agent may determine to be appropriate in connection with such Term Lender ceasing to be a Defaulting Lender, and such Term Lender shall thereupon cease to be a Defaulting Lender (but (x) in the case of a Delayed Draw Term Lender, shall not be entitled to receive any Delayed Draw Term Ticking Fees accrued during the period when it was a Defaulting Lender, and (y) all amendments, waivers or modifications effected without its consent in accordance with the provisions of Section 10.02 and this Section during such period shall be binding on it). The rights and remedies against, and with respect to to, a Defaulting Lender under this Section are in addition to, and cumulative and not in limitation of, all other rights and remedies that the Administrative Agent, any Lender for purposes of reallocations to be made pursuant to this paragraphIssuing Bank, the percentage of the Aggregate Revolving Commitment represented by Swingline Lender, any other Lender or any Loan Party may at any time have against, or with respect to, such Defaulting Lender’s Revolving Commitment at the time of such reallocation calculated including the Revolving Commitment of such Restored Lender but disregarding the Revolving Commitments of the Defaulting Lenders at such time).
Appears in 2 contracts
Sources: Credit Agreement (Westinghouse Air Brake Technologies Corp), Credit Agreement (Westinghouse Air Brake Technologies Corp)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unused amount unfunded portion of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a)2.11;
(b) for purposes of computing the Revolving amount of the obligation of each Lender that is a non-Defaulting Lender to fund participations in Letters of Credit pursuant to Section 2.05, the “Applicable Percentage” of each Lender that is a non-Defaulting Lender shall be computed without giving effect to the Commitment of that Defaulting Lender; provided that, (i) each such reallocation shall be given effect only if, at the date the Lender becomes a Defaulting Lender, no Default or Event of Default exists; and (ii) the aggregate obligation of a non-Defaulting Lender to acquire, refinance or fund participations in Letters of Credit shall not exceed the positive difference, if any, of (1) the Letter of Credit Commitment of that non-Defaulting Lender minus (2) the aggregate Letter of Credit Obligations of that Lender;
(c) if the reallocation described in clause (b) cannot, or can only partially, be effected, then the Borrowers shall within one Business Day following notice by the Administrative Agent Cash Collateralize for the benefit of the Issuer only the Borrowers’ obligations corresponding to such Defaulting Lender’s Letter of Credit Exposure (after giving effect to any partial reallocation pursuant to clause (b)) in accordance with the procedures set forth in Section 2.05 for so long as such Letter of Credit Exposure is outstanding and the relevant Defaulting Lender remains a Defaulting Lender;
(i) if the Borrowers Cash Collateralize any portion of such Defaulting Lender’s Letter of Credit Exposure pursuant to clause (c), then the Borrowers shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.11(b) with respect to such Defaulting Lender’s Letter of Credit Exposure during the period such Defaulting Lender’s Letter of Credit Exposure is Cash Collateralized; (ii) if the Letter of Credit Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (b), then the fees payable to the Lenders pursuant to Section 2.11(a) and (b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; or (iii) if all or any portion of such Defaulting Lender’s Letter of Credit Exposure is neither Cash Collateralized nor reallocated pursuant to clause (b) or (c), then, without prejudice to any rights or remedies of the Issuer or any Lender hereunder, all commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such Letter of Credit Exposure) and letter of credit fees payable under Section 2.11(b) with respect to such Defaulting Lender’s Letter of Credit Exposure shall be payable to the applicable Issuer until such Letter of Credit Exposure is Cash Collateralized and/or reallocated;
(e) the Commitment and Revolving Exposure Loans of such Defaulting Lender shall not be included in determining whether all Lenders, the Required Lenders Majority Lenders, the Majority Revolving Lenders, the Majority Term Lenders, the Supermajority Lenders, or any other requisite the Supermajority Revolving Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.0210.02); provided that any amendment, waiver or other modification requiring the consent of all Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereof;
(c) if any Swingline Exposure or LC Exposure exists at the time such Revolving Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the Non-Defaulting Lenders in accordance with their respective Applicable Percentages (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph (c), the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated disregarding the Revolving Commitments of the Defaulting Lenders at such time) but only to the extent that the sum of all Non-Defaulting Lenders’ Revolving Exposures plus such Defaulting Lender’s Swingline Exposure Commitment may not be increased or extended without its consent and LC Exposure does not exceed the sum of all Non-Defaulting Lenders’ Revolving Commitments;
(ii) if the reallocation described in clause (i) above cannotprincipal amount of, or can only partiallyinterest or fees payable on, Loans may not be effected, reduced or excused or the Borrower shall within one Business Day following notice by the Administrative Agent (A) first, prepay the portion scheduled date of payment may not be postponed as to such Defaulting Lender without such Defaulting Lender’s Swingline Exposure that has not been reallocated and (B) second, cash collateralize for the benefit of the Issuing Banks the portion of such Defaulting Lender’s LC Exposure that has not been reallocated in accordance with the procedures set forth in Section 2.05(i) for so long as such LC Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower shall not be required to pay participation fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such Defaulting Lender is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(b) shall be adjusted to give effect to such reallocationconsent; and
(vf) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all participation fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Bank Issuer shall be required to issue, increase, amend, renew renew, replace, refinance or extend any Letter of Credit, Credit unless in each case it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline it will have no Fronting Exposure or LC Exposure, as applicable, will be fully covered by the Revolving Commitments of the Non-Defaulting Lenders and/or cash collateral provided by the Borrower in accordance with Section 2.20(c), and participating interests in any such funded Swingline Loan or in any such issued, amended, reviewed or extended Letter of Credit will be allocated among the Non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein). In the event that (x) a Bankruptcy Event with respect to a Revolving Lender Parent shall have occurred following the date hereof and for so long as such Bankruptcy Event shall continue or (y) the Swingline Lender or any Issuing Bank has a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan, and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless the Swingline Lender or such Issuing Bank, as the case may be, shall have entered into arrangements with the Borrower or such Revolving Lender satisfactory to the Swingline Lender or such Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the Borrower, the Swingline Lender and each Issuing Bank each agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender (a “Restored Lender”), then the Swingline Exposure and LC Exposure of the Revolving Lenders shall be reallocated in accordance with their Applicable Percentages and on such date such Restored Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Restored Lender to hold such Loans in accordance with its Applicable Percentage (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph, the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated including the Revolving Commitment of such Restored Lender but disregarding the Revolving Commitments of the Defaulting Lenders at such time)after giving effect thereto.
Appears in 2 contracts
Sources: Credit Agreement (Unit Corp), Credit Agreement (Unit Corp)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees pursuant to Section 5.1 shall cease to accrue on the unused amount unfunded portion of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a)Lender;
(b) the Revolving Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided that any amendment, waiver or other modification requiring the consent of all Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereofhereunder;
(c) if any Swingline Exposure Swing Line Loans shall be outstanding or LC Exposure exists any L/C Obligations shall exist at the time such Revolving a Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure unfunded participations in and LC Exposure commitments with respect to such Swing Line Loans or Letters of such Defaulting Lender Credit shall be reallocated among the Nonnon-Defaulting Lenders in accordance with their respective Applicable Percentages (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph (c), the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated disregarding the Revolving Commitments of the Defaulting Lenders at such time) Pro Rata Shares but only to the extent that (x) the sum of all Nonnon-Defaulting Lenders’ Revolving Exposures Credit Exposure plus such Defaulting Lender’s Swingline Exposure Lenders’ Loans and LC Exposure participations in and commitments with respect to Loans and Letters of Credit does not exceed the sum total of all Nonnon-Defaulting Lenders’ Revolving Commitments;Lender’s Commitments and (y) the conditions set forth in Section 12 are satisfied at such time; provided, that the fees payable to the Lenders on account of the Letters of Credit shall be determined taking into account such reallocation.
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower Borrowers shall within one (1) Business Day following notice by the Administrative Agent (Ax) first, prepay the portion of outstanding Swing Line Loans that were not reallocated and (y) second, Cash Collateralize such Defaulting Lender’s Swingline Exposure that has not been reallocated and (B) second, cash collateralize for the benefit Pro Rata Share of the Issuing Banks the portion of such Defaulting Lender’s LC Exposure that has not been reallocated in accordance with the procedures set forth in Section 2.05(i) L/C Obligations for so long as such LC L/C Exposure is outstanding;
(iii) if the Borrower cash collateralizes Borrowers Cash Collateralize any portion of such Defaulting Lender’s LC L/C Exposure pursuant to clause (ii) above, the Borrower Borrowers shall not be required to pay participation any fees to such Defaulting Lender pursuant to Section 2.12(b) 5.2 with respect to such portion of Defaulting Lender’s L/C Exposure during the period such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC L/C Exposure is cash collateralized;; and
(iv) if any portion of the LC Defaulting Lender’s L/C Exposure of such Defaulting Lender is reallocated not Cash Collateralized pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(b) shall be adjusted to give effect to such reallocation; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any the Issuing Bank Lender or any other Lender hereunder, all participation letter of credit fees payable under Section 2.12(b) 5.2 with respect to such Defaulting Lender’s LC L/C Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of Lender until such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC L/C Exposure is reallocated and/or cash collateralized; andCash Collateralized;
(d) so long as such Revolving any Lender is a Defaulting Lender, the Swingline Issuing Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew issue or extend modify any Letter of Credit, unless in each case it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure or LC Exposure, as applicable, will be fully 100% covered by the Revolving Commitments of the Nonnon-Defaulting Lenders and/or cash collateral and by Cash Collateral provided by the Borrower Borrowers in accordance with Section 2.20(c2.6(c); and
(e) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 7.5 but excluding Section 8.7(b)) shall, in lieu of being distributed to such Defaulting Lender, be retained by the Administrative Agent in a segregated account and, subject to any applicable requirements of law, be applied at such time or times as may be determined by the Administrative Agent (i) first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder, (ii) second, to the payment of any amounts owing by such Defaulting Lender to the Issuing Bank or Swing Line Lender hereunder, (iii) third, to the funding of any Revolving Loan or the funding or Cash Collateralization of any participating interests interest in any such funded Swingline Swing Line Loan or in any such issued, amended, reviewed or extended Letter of Credit will be allocated among the Non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i) (and respect of which such Defaulting Lender shall not participate therein). In the event that (x) a Bankruptcy Event with respect to a Revolving Lender Parent shall have occurred following the date hereof and for so long as such Bankruptcy Event shall continue or (y) the Swingline Lender or any Issuing Bank has a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required failed to fund any Swingline Loan, and no Issuing Bank shall be its portion thereof as required to issue, amend, renew or extend any Letter of Credit, unless the Swingline Lender or such Issuing Bankby this Agreement, as the case may be, shall have entered into arrangements with the Borrower or such Revolving Lender satisfactory to the Swingline Lender or such Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that determined by the Administrative Agent, the Borrower(iv) fourth, the Swingline Lender and each Issuing Bank each agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender (a “Restored Lender”), then the Swingline Exposure and LC Exposure of the Revolving Lenders shall be reallocated in accordance with their Applicable Percentages and on such date such Restored Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as if so determined by the Administrative Agent shall determine may be necessary and the Borrowers, held in order such account as Cash Collateral for future funding obligations of the Defaulting Lender under this Agreement, (v) fifth, to the payment of any amounts owing to any Borrower or the Lenders as a result of any judgment of a court of competent jurisdiction obtained by such Restored Borrower or any Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, and (vi) sixth, to hold such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided, that if such payment is a prepayment of the principal amount of any Loans or reimbursement obligations in accordance with its Applicable Percentage (with the term “Applicable Percentage” meaning, respect of draws under Letters of Credit with respect to any which the Issuing Lender for purposes of reallocations has funded its participation obligations, such payment shall be applied solely to be made pursuant to this paragraphprepay the Loans of, the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated including the Revolving Commitment of such Restored Lender but disregarding the Revolving Commitments of the and reimbursement obligations owed to, all Lenders that are not Defaulting Lenders at such time)pro rata prior to being applied to the prepayment of any Loans, or Reimbursement Obligations owed to, any Defaulting Lender.
Appears in 2 contracts
Sources: Credit Agreement (Landauer Inc), Credit Agreement (Landauer Inc)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment facility fees shall cease to accrue on the unused amount of the US Dollar Tranche Revolving Commitment and Multicurrency Tranche Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a)2.13;
(b) the Revolving Commitment Commitment, Competitive Loan Exposure and Revolving Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided that any amendment, waiver or other modification requiring the consent of all Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereof;
(c) if any Swingline Exposure or LC Exposure exists at the time such Revolving Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender (other than (A) any portion of such Swingline Exposure (1) referred to in clause (b) of the definition of such term or (2) with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.05(c) and (B) any portion of such LC Exposure attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.06(d) and 2.06(e)) shall be reallocated among the Non-Defaulting Lenders that are US Dollar Tranche Revolving Lenders in accordance with their respective Applicable Percentages (with the term “Applicable Percentage” meaningPercentages, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph (c), the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated disregarding the Revolving Commitments of the Defaulting Lenders at such time) but only to the extent that following such reallocation the US Dollar Tranche Revolving Exposure of any such Non-Defaulting Lender does not exceed such Non-Defaulting Lender’s US Dollar Tranche Revolving Commitment and the sum of all Non-Defaulting Lenders’ US Dollar Tranche Revolving Exposures plus the amount of such Defaulting Lender’s Swingline Exposure and LC Exposure so reallocated does not exceed the sum of all Non-Defaulting Lenders’ US Dollar Tranche Revolving Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent (A) first, prepay the portion of such Defaulting Lender’s Swingline Exposure (other than any portion thereof referred to in the parenthetical in such clause (i)) that has not been reallocated and (B) second, cash collateralize for the benefit of the Issuing Banks the portion of such Defaulting Lender’s LC Exposure (other than any portion thereof referred to in the parenthetical in such clause (i)) that has not been reallocated in accordance with the procedures set forth in Section 2.05(i2.06(l) for so long as such LC Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower shall not be required to pay participation fees to such Defaulting Lender pursuant to Section 2.12(b2.13(b) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such Defaulting Lender is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(bSection 2.13(b) shall be adjusted to give effect to such reallocation; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all facility fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s US Dollar Tranche Revolving Commitment utilized by such LC Exposure) and participation fees payable under Section 2.12(b2.13(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender, the no Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless in each case it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure or LC Exposure, as applicableapplicable (other than any portion thereof referred to in the parenthetical in clause (i) above), will be fully covered by the US Dollar Tranche Revolving Commitments of the Non-Defaulting Lenders and/or cash collateral provided by the Borrower in accordance with Section 2.20(c2.21(c), and participating interests in any such funded Swingline Loan or in any such issued, amended, reviewed or extended Letter of Credit will be allocated among the Non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i2.21(c)(i) (and such Defaulting Lender shall not participate therein). .
(e) In the event that (xi) a Bankruptcy Event with respect to a Lender Parent of any US Dollar Tranche Revolving Lender Parent shall have occurred following the date hereof and for so long as such Bankruptcy Event shall continue or (yii) the any Swingline Lender or any Issuing Bank has a good faith belief that any US Dollar Tranche Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the such Swingline Lender shall not be required to fund any Swingline Loan, and no such Issuing Bank shall not be required to issue, amend, renew or extend any Letter of Credit, unless the such Swingline Lender or such Issuing Bank, as the case may be, shall have entered into arrangements with the Borrower or such the applicable US Dollar Tranche Revolving Lender satisfactory to the such Swingline Lender or such Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. .
(f) In the event that the Administrative Agent, the Borrower, the each Swingline Lender and each Issuing Bank each agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender (a “Restored Lender”), then the Swingline Exposure and LC Exposure of the US Dollar Tranche Revolving Lenders shall be reallocated in accordance with their Applicable Percentages readjusted to reflect the inclusion of such Lender’s US Dollar Tranche Revolving Commitment (if any) and on such date such Restored Lender shall purchase at par such of the Revolving Loans of each Class of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Restored Lender to hold such Loans in accordance with its Applicable Percentage (with the term “relevant Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph, the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated including the Revolving Commitment of such Restored Lender but disregarding the Revolving Commitments of the Defaulting Lenders at such time).
Appears in 2 contracts
Sources: Credit Agreement (Broadridge Financial Solutions, Inc.), Credit Agreement (Broadridge Financial Solutions, Inc.)
Defaulting Lenders. (a) Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(ai) commitment fees The Non-Usage Fee shall cease to accrue on the unused amount of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a);2.5; and
(bii) the Revolving Commitment and Revolving Exposure of such Defaulting Lender shall not be included in determining whether the Required all Lenders or any other requisite Lenders the Majority Lenders, as applicable, have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 9.0210.2); provided that any amendmentwaiver, waiver amendment or other modification requiring the consent of all Lenders or all each affected Lender which affects such Defaulting Lender differently than other affected Lenders affected thereby shall, except as otherwise provided in Section 9.02, shall require the consent of such Defaulting Lender in accordance with the terms hereof;Lender.
(cb) if any Swingline Exposure or LC Exposure exists at the time such Revolving Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the Non-Defaulting Lenders in accordance with their respective Applicable Percentages (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph (c), the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated disregarding the Revolving Commitments of the Defaulting Lenders at such time) but only to the extent that the sum of all Non-Defaulting Lenders’ Revolving Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the sum of all Non-Defaulting Lenders’ Revolving Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, If the Borrower shall within one Business Day following notice by and the Administrative Agent (A) first, prepay the portion of such Defaulting Lender’s Swingline Exposure agree in writing that has not been reallocated and (B) second, cash collateralize for the benefit of the Issuing Banks the portion of such Defaulting Lender’s LC Exposure that has not been reallocated in accordance with the procedures set forth in Section 2.05(i) for so long as such LC Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower shall not be required to pay participation fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such Defaulting a Lender is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(b) shall be adjusted to give effect to such reallocation; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all participation fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Revolving Lender is no longer a Defaulting Lender, the Swingline Lender Administrative Agent shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issueso notify the parties hereto, amend, renew or extend any Letter of Credit, unless in each case it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure or LC Exposure, whereupon as applicable, will be fully covered by the Revolving Commitments of the Non-Defaulting Lenders and/or cash collateral provided by the Borrower effective date specified in accordance with Section 2.20(c)such notice and subject to any conditions set forth therein, and participating interests in any such funded Swingline Loan or in any such issued, amended, reviewed or extended Letter of Credit will be allocated among the Non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein). In the event that (x) a Bankruptcy Event with respect to a Revolving Lender Parent shall have occurred following the date hereof and for so long as such Bankruptcy Event shall continue or (y) the Swingline Lender or any Issuing Bank has a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan, and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless the Swingline Lender or such Issuing Bank, as the case may be, shall have entered into arrangements with the Borrower or such Revolving Lender satisfactory to the Swingline Lender or such Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the Borrower, the Swingline Lender and each Issuing Bank each agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender (a “Restored Lender”), then the Swingline Exposure and LC Exposure of the Revolving Lenders shall be reallocated in accordance with their Applicable Percentages and on such date such Restored Lender shall purchase at par such of the Revolving Loans Advances of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Restored Lender to hold such Loans Advances in accordance with its Applicable Percentage (with the term “Applicable Percentage” meaning, whereupon such Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to any Lender for purposes of reallocations to be fees accrued or payments made pursuant to this paragraph, the percentage by or on behalf of the Aggregate Revolving Commitment represented Borrower while that Lender was a Defaulting Lender; provided, further, that except to the extent otherwise expressly agreed by such the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender having been a Defaulting Lender’s Revolving Commitment at the time of such reallocation calculated including the Revolving Commitment of such Restored Lender but disregarding the Revolving Commitments of the Defaulting Lenders at such time).
Appears in 2 contracts
Sources: Credit Agreement (Caliber Home Loans, Inc.), Credit Agreement (Home Point Capital Inc.)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees the Commitment Fee set forth in Section 2.3(a) shall cease to accrue on the unused amount of the Revolving Commitment of for such Defaulting Lender pursuant to Section 2.12(a);Lender.
(b) the Revolving Commitment and Revolving Exposure Extensions of Credit of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 9.0211.1); , provided that any amendmentwaiver, waiver amendment or other modification (i) requiring the consent of all Lenders or all each affected Lender which affects such Defaulting Lender disproportionately with respect to the other affected Lenders affected thereby shall, except as otherwise provided in Section 9.02, or (ii) that would increase or extend the term of the Commitment of such Defaulting Lender shall require the consent of such Defaulting Lender in accordance with the terms hereof;Lender.
(c) if any Swingline Exposure or LC Exposure exists L/C Obligations exist at the time such Revolving a Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender L/C Obligations shall be reallocated among the Nonnon-Defaulting Lenders in accordance with their respective Applicable Commitment Percentages (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph (c), the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated disregarding the Revolving Commitments of the Defaulting Lenders at such time) but only to the extent that the sum of all Nonnon-Defaulting Lenders’ Revolving Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure Extensions of Credit does not exceed the sum total of all Nonnon-Defaulting Lenders’ Revolving Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the applicable Borrower shall within one Business Day following notice by the Administrative Agent Agent, (A) firstin the case of Unsecured Letters of Credit, prepay the portion of cash collateralize such Defaulting Lender’s Swingline Exposure that has not been reallocated and L/C Obligations (Bafter giving effect to any partial reallocation pursuant to clause (i) second, cash collateralize for the benefit of the Issuing Banks the portion of such Defaulting Lender’s LC Exposure that has not been reallocated above) in accordance with the procedures set forth in Section 2.05(i8 for so long as such L/C Obligations are outstanding or (B) in the case of Secured Letters of Credit, ensure that the Borrowing Base includes an amount of cash equal to or greater than the Defaulting Lender’s L/C Obligations (after giving effect to any partial reallocation pursuant to clause (i) above) for so long as such LC Exposure is L/C Obligations are outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure L/C Obligations pursuant to clause (ii) abovethis Section 2.18(c), the Borrower shall not be required to pay participation any fees to such Defaulting Lender pursuant to Section 2.12(b3.3(a) with respect to such portion of Defaulting Lender’s L/C Obligations during the period such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC Exposure is L/C Obligations are cash collateralized;
(iv) if any portion the L/C Obligations of the LC Exposure of such non-Defaulting Lender is Lenders are reallocated pursuant to clause (ithis Section 2.18(c) above, then the fees payable to the Lenders pursuant to Sections 2.12(aSection 2.3(a) and 2.12(bSection 3.3(a) shall be adjusted to give effect to in accordance with such reallocationnon-Defaulting Lenders’ Commitment Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is L/C Obligations are neither reallocated nor cash collateralized nor reallocated pursuant to clause (i) or (ii) abovethis Section 2.18(c), then, without prejudice to any rights or remedies of any Issuing Bank Lender or any other Lender hereunder, all participation letter of credit fees payable under Section 2.12(b) 3.3 with respect to such Defaulting Lender’s LC Exposure L/C Obligations shall be payable to the applicable Issuing Banks (and allocated among them ratably based on the amount of Lender until such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated L/C Obligations are cash collateralized and/or cash collateralized; andreallocated.
(d) so long as such Revolving any Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and no Applicable Issuing Bank Party shall be required to issue, amend, renew amend or extend increase any Letter of Credit, unless in each case it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure or LC Exposure, as applicable, will be fully 100% covered by the Revolving Commitments of the Nonnon-Defaulting Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 2.20(c2.18(c), and participating interests or Commitment Shares in any such funded Swingline Loan newly issued or in any such issued, amended, reviewed or extended increased Letter of Credit will shall be allocated among the Nonnon-Defaulting Lenders in a manner consistent with Section 2.20(c)(i2.18(c)(i) (and such Defaulting Lender Lenders shall not participate therein). In .
(e) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 11.7 but excluding Section 2.16) shall, in lieu of being distributed to such Defaulting Lender, be retained by the event that 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 (xi) a Bankruptcy Event with respect first, to a Revolving the payment of any amounts owing by such Defaulting Lender Parent shall have occurred following to the date hereof and Administrative Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to the Applicable Issuing Parties hereunder, (iii) third, if so determined by the Administrative Agent or requested by an Applicable Issuing Party, to be held in such account as cash collateral for so long as such Bankruptcy Event shall continue future funding obligations of the Defaulting Lender of any participating interest or (y) the Swingline Lender or any Issuing Bank has a good faith belief that any Revolving Lender has defaulted Commitment Share in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan, and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless (iv) fourth, to the Swingline funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (v) fifth, if so determined by the Administrative Agent and the Borrower, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders or an Issuing Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender or such Issuing BankLender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, as (vii) seventh, to the case may be, shall have entered into arrangements with payment of any amounts owing to the Borrower or as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Revolving Defaulting Lender satisfactory as a result of such Defaulting Lender’s breach of its obligations under this Agreement, and (viii) eighth, to the Swingline such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such Issuing Bank, as payment is (x) a prepayment of the case may be, to defease principal amount of any risk to it Loans or reimbursement obligations in respect of a payment made by an Issuing Lender pursuant to a Letter of Credit for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 5.2 are satisfied, such Lender hereunderpayment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Lender. In the event that the Administrative Agent, the Borrower, the Swingline Lender Borrower and each Issuing Bank each Lender agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender (a “Restored Lender”), then the Swingline Exposure and LC Exposure L/C Obligations of the Revolving Lenders shall be reallocated in accordance with their Applicable Percentages readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Restored Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Restored Lender to hold such Loans in accordance with its Applicable Percentage (with the term “Applicable Commitment Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph, the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated including the Revolving Commitment of such Restored Lender but disregarding the Revolving Commitments of the Defaulting Lenders at such time).
Appears in 2 contracts
Sources: Credit Agreement (Aspen Insurance Holdings LTD), Credit Agreement (Aspen Insurance Holdings LTD)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unused amount unfunded portion of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a2.10(a);
(b) the Revolving Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided provided, that any this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of all Lenders such Lender or all Lenders each Lender affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereofthereby;
(c) if any Swingline Exposure or LC Exposure exists at the time such Revolving Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the Nonnon-Defaulting Lenders in accordance with their respective Applicable Percentages (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph (c), the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated disregarding the Revolving Commitments of the Defaulting Lenders at such time) but only to the extent that (x) the sum of all Nonnon-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the sum total of all Nonnon-Defaulting Lenders’ Commitments; (y) the conditions set forth in Section 4.02 are satisfied at such time; and (z) the sum of each non-Defaulting Lender’s Revolving Commitments;Credit Exposure plus its reallocated share of such Defaulting Lender’s LC Exposure does not exceed such non-Defaulting Lender’s Commitment; and
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent (A) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (B) second, cash collateralize for the benefit of the Issuing Banks Bank only the portion of Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure that has not been reallocated (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.05(i2.04(j) for so long as such LC Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) aboveSection 2.18(c)(ii), the Borrower shall not be required to pay participation any fees to such Defaulting Lender pursuant to Section 2.12(b2.10(b)(i) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such the non-Defaulting Lender Lenders is reallocated pursuant to clause (i) aboveSection 2.18(c)(i), then the fees payable to the Lenders pursuant to Sections 2.12(aSection 2.10(a) and 2.12(bSection 2.10(b)(i) shall be adjusted to give effect to in accordance with such reallocationnon-Defaulting Lenders’ Applicable Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (iSection 2.18(c)(i) or (ii) above, then, without prejudice to any rights or remedies of any the Issuing Bank or any other Lender hereunder, all participation facility fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.12(b2.10(b)(i) with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) Bank until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lender Issuing Bank shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew amend or extend increase any Letter of Credit, unless in each case it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline LC Exposure or LC Exposure, as applicable, will be fully 100% covered by the Revolving Commitments of the Nonnon-Defaulting Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 2.20(c2.18(c), and participating interests in any such funded Swingline Loan newly issued or in any such issued, amended, reviewed or extended increased Letter of Credit will shall be allocated among the Nonnon-Defaulting Lenders in a manner consistent with Section 2.20(c)(i2.18(c)(i) (and such Defaulting Lender shall not participate therein). In the event that If (xi) a Bankruptcy Event with respect to a Revolving Lender Parent shall have occurred occur following the date hereof and for so long as such Bankruptcy Event event shall continue or (yii) the Swingline Lender or any Issuing Bank has a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender Issuing Bank shall not be required to fund any Swingline Loan, and no Issuing Bank shall be required to issue, amend, renew amend or extend increase any Letter of Credit, unless the Swingline Lender or such Issuing Bank, as the case may be, Bank shall have entered into arrangements with the Borrower or such Revolving Lender Lender, satisfactory to the Swingline Lender or such Issuing Bank, as the case may be, Bank to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the Borrower, Borrower and the Swingline Lender and each Issuing Bank each agree agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender (a “Restored Lender”), then the Swingline Exposure and LC Exposure of the Revolving Lenders shall be reallocated in accordance with their Applicable Percentages readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Restored Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Restored Lender to hold such Loans in accordance with its Applicable Percentage (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph, the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated including the Revolving Commitment of such Restored Lender but disregarding the Revolving Commitments of the Defaulting Lenders at such time).
Appears in 2 contracts
Sources: 364 Day Revolving Credit Agreement (NuStar GP Holdings, LLC), 364 Day Revolving Credit Agreement (NuStar GP Holdings, LLC)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unused amount of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a);
(b) the Revolving Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided provided, that any this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of all Lenders such Lender or all Lenders each Lender directly affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereofthereby;
(c) if any Swingline Exposure or LC Exposure exists at the time such Revolving Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the Nonnon-Defaulting Lenders in accordance with their respective Applicable Percentages (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph (c), the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated disregarding the Revolving Commitments of the Defaulting Lenders at such time) but only to the extent that the sum of all Nonnon-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the sum total of all Nonnon-Defaulting Lenders’ Revolving Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower Company shall within one (1) Business Day following notice by the Administrative Agent (Ax) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (By) second, cash collateralize for the benefit of the Issuing Banks Bank only the portion of Borrowers’ obligations corresponding to such Defaulting Lender’s LC Exposure that has not been reallocated (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.05(i2.06(j) for so long as such LC Exposure is outstanding;
(iii) if the Borrower Company cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower Borrowers shall not be required to pay participation any fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such the non-Defaulting Lender Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and Section 2.12(b) shall be adjusted to give effect to in accordance with such reallocationnon-Defaulting Lenders’ Applicable Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any the Issuing Bank or any other Lender hereunder, all participation facility fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) Bank until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and no the Issuing Bank shall not be required to issue, amend, renew amend or extend increase any Letter of Credit, unless in each case it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline LC Exposure or LC Exposure, as applicable, will be fully 100% covered by the Revolving Commitments of the Nonnon-Defaulting Lenders and/or cash collateral will be provided by the Borrower Company in accordance with Section 2.20(c2.24(c), and participating interests in any such funded newly made Swingline Loan or in any such issued, amended, reviewed newly issued or extended increased Letter of Credit will shall be allocated among the Nonnon-Defaulting Lenders in a manner consistent with Section 2.20(c)(i2.24(c)(i) (and such Defaulting Lender shall not participate therein). In the event that If (xi) a Bankruptcy Event with respect to a Revolving Parent of any Lender Parent shall have occurred occur following the date hereof and for so long as such Bankruptcy Event event shall continue or (yii) the Swingline Lender or any the Issuing Bank has a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan, Loan and no the Issuing Bank shall not be required to issue, amend, renew amend or extend increase any Letter of Credit, unless the Swingline Lender or such the Issuing Bank, as the case may be, shall have entered into arrangements with the Borrower Company or such Revolving Lender Lender, satisfactory to the Swingline Lender or such the Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the BorrowerCompany, the Swingline Lender and each the Issuing Bank each agree agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender (a “Restored Lender”), then the Swingline Exposure and LC Exposure of the Revolving Lenders shall be reallocated in accordance with their Applicable Percentages readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Restored Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Restored Lender to hold such Loans in accordance with its Applicable Percentage (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph, the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated including the Revolving Commitment of such Restored Lender but disregarding the Revolving Commitments of the Defaulting Lenders at such time).
Appears in 2 contracts
Sources: Credit Agreement (Fiserv Inc), Credit Agreement (Fiserv Inc)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(ai) commitment fees shall cease to accrue on the unused amount unfunded portion of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a)2.3 [Commitment Fees];
(bii) the Revolving Commitment and Revolving Exposure outstanding Loans of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.0212.1 [Modifications, Amendments or Waivers]); provided provided, that any this clause (ii) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of all Lenders such Lender or all Lenders each Lender directly affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereofthereby;
(ciii) if any Swingline Exposure Swing Loans are outstanding or LC Exposure exists any Letter of Credit Obligations exist at the time such Revolving Lender becomes a Defaulting Lender Lender, then:
(ia) all or any part of the Swingline Exposure outstanding Swing Loans and LC Exposure Letter of Credit Obligations of such Defaulting Lender shall be reallocated among the Nonnon-Defaulting Lenders in accordance with their respective Applicable Percentages (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph (c), the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated disregarding the Revolving Commitments of the Defaulting Lenders at such time) Ratable Shares but only to the extent that (x) the sum Revolving Facility Usage does not exceed the total of all Nonnon-Defaulting Lenders’ Revolving Exposures plus Credit Commitments, and (y) no Potential Default or Event of Default has occurred and is continuing at such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the sum of all Non-Defaulting Lenders’ Revolving Commitmentstime;
(iib) if the reallocation described in clause (ia) above cannot, or can only partially, be effected, the Borrower Borrowers shall within one Business Day following notice by the Administrative Agent (Ax) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated outstanding Swing Loans, and (By) second, cash collateralize for the benefit of the Issuing Banks Lender the portion of Borrowers’ obligations corresponding to such Defaulting Lender’s LC Exposure that has not been reallocated Letter of Credit Obligations (after giving effect to any partial reallocation pursuant to clause (a) above) in accordance with a deposit account held at the procedures set forth in Section 2.05(i) Administrative Agent for so long as such LC Exposure is Letter of Credit Obligations are outstanding;
(iiic) if the Borrower Borrowers cash collateralizes any portion of such Defaulting Lender’s LC Exposure Letter of Credit Obligations pursuant to clause (iib) above, the Borrower Borrowers shall not be required to pay participation any fees to such Defaulting Lender pursuant to Section 2.12(b) 2.8.2 [Letter of Credit Fees] with respect to such portion Defaulting Lender’s Letter of Credit Obligations during the period such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC Exposure is Letter of Credit Obligations are cash collateralized;
(ivd) if any portion the Letter of Credit Obligations of the LC Exposure of such non-Defaulting Lender is Lenders are reallocated pursuant to clause (ia) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(b) Section 2.8.2 [Letter of Credit Fees] shall be adjusted to give effect to in accordance with such reallocationnon-Defaulting Lenders’ Ratable Share; and
(ve) if all or any portion of such Defaulting Lender’s LC Exposure is Letter of Credit Obligations are neither reallocated nor cash collateralized pursuant to clause (ia) or (iib) above, then, without prejudice to any rights or remedies of any the Issuing Bank Lender or any other Lender hereunder, all participation fees Letter of Credit Fees payable under Section 2.12(b) 2.8.2 [Letter of Credit Fees] with respect to such Defaulting Lender’s LC Exposure Letter of Credit Obligations shall be payable to the Issuing Banks Lender (and allocated among them ratably based on the amount of not to such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is Letter of Credit Obligations are reallocated and/or cash collateralized; and
(div) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lender PNC shall not be required to fund any Swingline Loan Swing Loans and no the Issuing Bank Lender shall not be required to issue, amend, renew amend or extend increase any Letter of Credit, unless in each case it (a) with respect to Letters of Credit, such Issuing Lender is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure or LC Exposure, as applicable, Letter of Credit Obligations will be fully 100% covered by the Revolving Credit Commitments of the Nonnon-Defaulting Lenders and/or cash collateral will be provided by the Borrower Borrowers in accordance with Section 2.20(c2.10(iii), and participating (b) with respect to Swing Loans, the amount of requested Swing Loans when allocated to non-Defaulting Lenders plus outstanding Swing Loans will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Lenders. Participating interests in any such funded Swingline newly made Swing Loan or in any such issued, amended, reviewed newly issued or extended increased Letter of Credit will shall be allocated among the Nonnon-Defaulting Lenders in a manner consistent with Section 2.20(c)(i2.10(iii)(a) (and such Defaulting Lender shall not participate therein). In the event that If (xi) a Bankruptcy Event with respect to a Revolving parent company of any Lender Parent shall have occurred occur following the date hereof and for so long as such Bankruptcy Event event shall continue continue, or (yii) PNC or the Swingline Issuing Lender or any Issuing Bank has a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender PNC shall not be required to fund any Swingline Loan, Swing Loan and no the Issuing Bank Lender shall not be required to issue, amend, renew amend or extend increase any Letter of Credit, unless PNC or the Swingline Lender or such Issuing BankLender, as the case may be, shall have entered into arrangements with the Borrower Borrowers or such Revolving Lender Lender, satisfactory to PNC or the Swingline Lender or such Issuing BankLender, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the BorrowerBorrowers, PNC and the Swingline Issuing Lender and each Issuing Bank each agree in writing that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender (a “Restored Lender”), then the Swingline Exposure Administrative Agent will so notify the parties hereto, and LC Exposure the Ratable Share of the Revolving Swing Loans and Letter of Credit Obligations of the Lenders shall be reallocated in accordance with their Applicable Percentages readjusted to reflect the inclusion of such Lender’s Commitment, and on such date such Restored Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Swing Loans) as the Administrative Agent shall determine may be necessary in order for such Restored Lender to hold such Loans in accordance with its Applicable Percentage (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph, the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated including the Revolving Commitment of such Restored Lender but disregarding the Revolving Commitments of the Defaulting Lenders at such time)Ratable Share.
Appears in 2 contracts
Sources: Credit Agreement (Foster L B Co), Credit Agreement (Foster L B Co)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unused amount of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a);2.11; and
(b) the Revolving Commitment and Revolving Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.0210.02); provided that any amendment, waiver or other modification requiring the consent of all Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 9.0210.02, require the consent of such Defaulting Lender in accordance with the terms hereof;
(c) if any Swingline Exposure or LC Exposure exists at the time such Revolving Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the Non-Defaulting Lenders in accordance with their respective Applicable Percentages (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph (c), the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated disregarding the Revolving Commitments of the Defaulting Lenders at such time) but only to the extent that the sum of all Non-Defaulting Lenders’ Revolving Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the sum of all Non-Defaulting Lenders’ Revolving Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent (A) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (B) second, cash collateralize for the benefit of the Issuing Banks the portion of such Defaulting Lender’s LC Exposure that has not been reallocated in accordance with the procedures set forth in Section 2.05(i) for so long as such LC Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower shall not be required to pay participation fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such Defaulting Lender is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(b) shall be adjusted to give effect to such reallocation; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all participation fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless in each case it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure or LC Exposure, as applicable, will be fully covered by the Revolving Commitments of the Non-Defaulting Lenders and/or cash collateral provided by the Borrower in accordance with Section 2.20(c), and participating interests in any such funded Swingline Loan or in any such issued, amended, reviewed or extended Letter of Credit will be allocated among the Non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein). In the event that (x) a Bankruptcy Event with respect to a Revolving Lender Parent shall have occurred following the date hereof and for so long as such Bankruptcy Event shall continue or (y) the Swingline Lender or any Issuing Bank has a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan, and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless the Swingline Lender or such Issuing Bank, as the case may be, shall have entered into arrangements with the Borrower or such Revolving Lender satisfactory to the Swingline Lender or such Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, Agent and the Borrower, the Swingline Lender and each Issuing Bank each Company shall agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender (a “Restored Lender”), then the Swingline Exposure and LC Exposure of the Revolving Lenders shall be reallocated in accordance with their Applicable Percentages and on such date such Restored Lender shall fund its Loans to each Borrower or purchase at par such of the Revolving Loans Exposures of the other Revolving Lenders (other than Swingline Loans) Lenders, in each case as the Administrative Agent shall determine may be necessary in order for such Restored Lender to hold such Loans Revolving Exposures ratably in accordance with its Applicable Percentage (with the term “Applicable Percentage” meaning, with respect to any applicable Commitments. Such Lender for purposes of reallocations shall cease to be made pursuant a Defaulting Lender upon remedying all matters to this paragraph, the percentage satisfaction of the Aggregate Revolving Commitment represented by Administrative Agent and the Company that caused such Lender to be a Defaulting Lender’s Revolving Commitment at the time of such reallocation calculated , including the funding of any Revolving Commitment of Exposure necessary in order for such Restored Lender but disregarding the Revolving Commitments of the Defaulting Lenders at to hold such time)Exposures ratably in accordance with its applicable Commitments.
Appears in 2 contracts
Sources: Credit Agreement (CDK Global Holdings, LLC), Credit Agreement (CDK Global Holdings, LLC)
Defaulting Lenders. Notwithstanding any provision of this Credit Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees Facility Fees shall cease to accrue on the unused amount of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a3.4(a);
(b) the Revolving Commitment and Revolving Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Credit Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.0211.6); provided that any amendment, waiver or other modification requiring the consent of all Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 9.0211.6, require the consent of such Defaulting Lender in accordance with the terms hereof;
(c) if any Swingline Swing Line Exposure or LC Exposure LOC Obligation exists at the time such Revolving Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Swing Line Exposure and LC Exposure LOC Obligations of such Defaulting Lender shall be reallocated among the Non-Defaulting Lenders in accordance with their respective Applicable Revolving Loan Commitment Percentages (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph (c), the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated disregarding the Revolving Commitments of the Defaulting Lenders at such time) but only to the extent that the sum of all Non-Defaulting Lenders’ Revolving Exposures plus such Defaulting Lender’s Swingline Swing Line Exposure and LC Exposure LOC Obligations does not exceed the sum of all Non-Defaulting Lenders’ Revolving Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall shall, within one Business Day following notice by the Administrative Agent (A) first, prepay the portion of such Defaulting Lender’s Swingline Swing Line Exposure that has not been reallocated and (B) second, cash collateralize for the benefit of the Issuing Banks Lenders the portion of such Defaulting Lender’s LC Exposure LOC Obligations that has not been reallocated in accordance with the procedures set forth in Section 2.05(i) for so long as such LC Exposure is outstandingLOC Obligations are outstanding by depositing cash in such amount in an account with the Administrative Agent, in the name of the Administrative Agent and for the benefit of the Lenders;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure LOC Obligations pursuant to clause (ii) above, the Borrower shall not be required to pay participation fees Letter of Credit Fees to such Defaulting Lender pursuant to Section 2.12(b3.4(b) with respect to such portion of such Defaulting Lender’s LC Exposure LOC Obligations for so long as such Defaulting Lender’s LC Exposure is LOC Obligations are cash collateralized;
(iv) if any portion of the LC Exposure LOC Obligations of such Defaulting Lender is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a3.4(a) and 2.12(b3.4(b) shall be adjusted to give effect to such reallocation; and
(v) if all or any portion of such Defaulting Lender’s LC LOC Obligations or Swing Line Exposure is neither or any portion thereof are not repaid or reallocated nor or cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank Lender or any other Lender hereunder, all participation fees Facility Fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment utilized by such LOC Obligations and Swing Line Exposure) and Letter of Credit Fees payable under Section 2.12(b3.4(b) with respect to such Defaulting Lender’s LC Exposure LOC Obligations shall be payable to the relevant Issuing Banks (Lender and allocated among them ratably based on the amount of such Defaulting Swing Line Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) , as its interests may appear, until and to the extent that such LC LOC Obligation and Swing Line Exposure is reallocated and/or cash collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew collateralized or extend any Letter of Credit, unless in each case it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure or LC Exposure, as applicable, will be fully covered by the Revolving Commitments of the Non-Defaulting Lenders and/or cash collateral provided by the Borrower in accordance with Section 2.20(c), and participating interests in any such funded Swingline Loan or in any such issued, amended, reviewed or extended Letter of Credit will be allocated among the Non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein)repaid. In the event that (x) a Bankruptcy Event any event described in Section 9.1(f) with respect to a Revolving Lender Parent shall have occurred following the date hereof Restatement Effective Date and for so long as such Bankruptcy Event of Default under Section 9.1(f) shall continue or (y) the Swingline Lender or any Issuing Bank Lender has a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan, and no Issuing Bank Lender shall be required to issue, amend, renew or extend any Letter of Credit, Credit unless the Swingline Lender or such Issuing Bank, as the case may be, Lender shall have entered into arrangements with the Borrower or such Revolving Lender satisfactory to the Swingline Lender or such Issuing Bank, as the case may be, Lender to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the Borrower, the Swingline Swing Line Lender and each the Issuing Bank each Lenders agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender (a “Restored Lender”), then (i) the Swingline Swing Line Exposure and LC Exposure LOC Obligation of the Revolving Lenders shall be reallocated in accordance with their Applicable Percentages and readjusted to reflect the inclusion of such Lender’s Revolving Commitment, (ii) on such date such Restored Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Swing Line Loans) as the Administrative Agent shall determine may be necessary in order for such Restored Revolving Lender to hold such Loans in accordance with its Applicable Revolving Loan Commitment Percentage and (with iii) any and all cash collateral provided by the term “Applicable Percentage” meaning, with Borrower in respect to any Lender for purposes of reallocations to be made pursuant to this paragraph, the percentage of the Aggregate Revolving Commitment represented by such Defaulting Lender’s Revolving Commitment at Swing Line Exposure or LOC Obligations in accordance with Section 2.6(c)(ii) above shall be immediately released to the time of Borrower and the Administrative Agent and the Lenders shall promptly execute such reallocation calculated including the Revolving Commitment of documents as may be necessary to give effect to such Restored Lender but disregarding the Revolving Commitments of the Defaulting Lenders at such time)release.
Appears in 2 contracts
Sources: Credit Agreement (Quest Diagnostics Inc), Credit Agreement (Quest Diagnostics Inc)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unused amount of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a);
(b) the Revolving Commitment and Revolving Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided that any amendment, waiver or other modification requiring the consent of all Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereof;
(c) if any Swingline Exposure or LC Exposure exists at the time such Revolving a Lender becomes is a Defaulting Lender then:
(i) Lender, all or any part of the Swingline Exposure and such Defaulting Lender’s LC Exposure of such Defaulting Lender shall be reallocated among the Non-Defaulting Lenders in accordance with their respective Applicable Percentages (calculated (x) without regard to such Defaulting Lender’s Commitment and (y) in accordance with the term “Applicable Percentage” meaning, with Commitments in respect to any Lender for purposes of reallocations to be made pursuant to this paragraph (c), the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time applicable type of such reallocation calculated disregarding the Revolving Commitments Letter of the Defaulting Lenders at such timeCredit) but only to the extent that (i) the sum conditions set forth in Section 3.02 are satisfied at the time of all such reallocation (and, unless the Company shall have otherwise notified the Administrative Agent at such time, the Company shall be deemed to have represented and warranted that such conditions are satisfied at such time), and (ii) such reallocation does not cause any Non-Defaulting Lenders’ Revolving Exposures plus Lender’s Applicable Percentage (calculated (x) without regard to such Defaulting Lender’s Swingline Exposure Commitment and LC Exposure does not (y) in accordance with the Commitments in respect of the applicable type of Letter of Credit) of the Utilization to exceed the sum of all such Non-Defaulting Lenders’ Revolving CommitmentsLender’s Commitment in respect of the applicable type of Letter of Credit. Subject to Section 8.22, no reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Lender having become a Defaulting Lender, including any claim of a Non-Defaulting Lender as a result of such Non-Defaulting Lender’s increased exposure following such reallocation;
(iib) if the reallocation described in clause (ia) above cannot, or can only partially, be effected, the Borrower Company shall within one two (2) Business Day Days following notice by the Administrative Agent (A) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (B) second, cash collateralize or (to the extent permitted by Section 2.12(c)) provide Permitted Cover for the benefit of the Issuing Banks the portion of such Defaulting Lender’s LC Exposure that has not been reallocated in accordance with the procedures set forth in Section 2.05(i) 2.12 for so long as such LC Exposure is outstandingoutstanding and to the extent such LC Exposure is not otherwise reallocated pursuant to clause (a) above;
(iiic) the Commitment and LC Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 8.05), provided that any waiver, amendment or modification extending or increasing the Commitment of such Defaulting Lender or reducing the principal of any LC Disbursement made by such Defaulting Lender shall require the consent of such Defaulting Lender;
(i) if such Defaulting Lender’s LC Exposure is reallocated pursuant to the foregoing clause (a), the Company shall (x) pay to each Non-Defaulting Lender that portion of any Letter of Credit Fees otherwise payable to such Defaulting Lender pursuant to Section 2.19(b) with respect to such Defaulting Lender’s LC Exposure that has been reallocated to such Non-Defaulting Lender and (y) not be required to pay the Commitment Fees to such Defaulting Lender pursuant to Section 2.19(a) with respect to such reallocated portion of such Defaulting Lender’s LC Exposure, (ii) if the Borrower Company cash collateralizes or provides (to the extent permitted by Section 2.12(c)) Permitted Cover for any portion of such Defaulting Lender’s LC Exposure pursuant to the foregoing clause (ii) aboveb), the Borrower Company shall not be required to pay participation fees the Letter of Credit Fees or Commitment Fees to such Defaulting Lender pursuant to Section 2.12(bSections 2.19(a) and (b) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as during the period such Defaulting Lender’s LC Exposure is cash collateralized;
collateralized or covered by Permitted Cover and (iviii) if any portion of the LC Exposure of such Defaulting Lender is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(b) shall be adjusted to give effect to such reallocation; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) abovethis Section 2.22, then, without prejudice the Company shall pay to any rights or remedies the applicable Issuing Lenders the amount of any Issuing Bank or any other Lender hereunder, all participation fees such Letter of Credit Fees otherwise payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable Lender pursuant to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralizedSection 2.19(b); and
(de) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Bank Lender shall be required to issue, amend, renew amend or extend increase any Letter of Credit, Credit unless in each case it is satisfied that cash collateral or (to the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure or LC Exposure, as applicable, extent permitted by Section 2.12(c)) Permitted Cover will be fully covered by the Revolving Commitments of the Non-Defaulting Lenders and/or cash collateral provided by the Borrower Company in accordance with Section 2.20(c), and participating interests in any such funded Swingline Loan or in any such issued, amended, reviewed or extended Letter of Credit will be allocated among the Non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i) foregoing clause (and such Defaulting Lender shall not participate thereinb). In If the event Company, the Administrative Agent and each Issuing Lender agree in writing that a Lender is no longer a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (x) a Bankruptcy Event which may include arrangements with respect to a any cash collateral), that Lender will, to the extent applicable, purchase at par that portion of outstanding Revolving Lender Parent shall have occurred following Advances of the date hereof other Lenders or take such other actions as the Administrative Agent may determine to be necessary to cause the Revolving Advances and for so long as such Bankruptcy Event shall continue or funded and unfunded participations in Letters of Credit to be held pro rata by the Lenders in accordance with the Commitments then in effect (y) the Swingline Lender or any Issuing Bank has a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which without giving effect to Section 2.22(a)), whereupon such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan, and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless the Swingline Lender or such Issuing Bank, as the case may be, shall have entered into arrangements with the Borrower or such Revolving Lender satisfactory to the Swingline Lender or such Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the Borrower, the Swingline Lender and each Issuing Bank each agree that a Defaulting Lender has adequately remedied all matters that caused such Lender will cease to be a Defaulting Lender (a “Restored Lender”), then the Swingline Exposure and LC Exposure of the Revolving Lenders shall ; provided that no adjustments will be reallocated in accordance with their Applicable Percentages and on such date such Restored Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Restored Lender to hold such Loans in accordance with its Applicable Percentage (with the term “Applicable Percentage” meaning, made retroactively with respect to any Lender for purposes of reallocations to be fees accrued or payments made pursuant to this paragraph, the percentage by or on behalf of the Aggregate Revolving Commitment represented Company while that Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly agreed by such the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s Revolving Commitment at the time of such reallocation calculated including the Revolving Commitment of such Restored Lender but disregarding the Revolving Commitments of the having been a Defaulting Lenders at such time)Lender.
Appears in 2 contracts
Sources: Revolving Loan and Letter of Credit Facility Agreement (Fluor Corp), Revolving Loan and Letter of Credit Facility Agreement (Fluor Corp)
Defaulting Lenders. Notwithstanding In the event that any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees such Defaulting Lender’s Revolving Commitments and outstanding Revolving Loans shall cease be excluded for purposes of calculating the fee payable to accrue on the unused amount Revolving Lenders in respect of the Revolving Commitment of Section 2.13 (a), and such Defaulting Lender shall not be entitled to receive any fee pursuant to Section 2.12(a);2.13(a) with respect to such Defaulting Lender’s Revolving Commitments or Revolving Loans.
(b) the Revolving Commitment Commitments and Revolving Exposure Loans of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 9.029.03); , provided that any amendmentwaiver, waiver amendment or other modification requiring the consent of all each affected Lender which affects such Defaulting Lender differently than other affected Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 9.02, shall require the consent of such Defaulting Lender in accordance with the terms hereof;Lender.
(c) in the event a Defaulting Lender has defaulted on its obligation to fund any Revolving Loan, or purchase any participation pursuant to Section 2.06(b) or Section 2.07(b) hereof, until such time as the Default Excess with respect to such Defaulting Lender has been reduced to zero, any prepayments or repayments on account of the Revolving Loans or participations purchased pursuant to Section 2.06(b) or Section 2.07(b) shall be applied to the Revolving Loans and funded participations of other Lenders as if such Defaulting Lender had no Revolving Loans or funded participations outstanding.
(d) If any Swingline Exposure Loans or LC Exposure exists Letter of Credit Obligations are outstanding at the time such Revolving a Lender becomes a Defaulting Lender then:
(i) all or any part of the such Swingline Exposure Loans and LC Exposure Letter of such Defaulting Lender Credit Obligations shall be reallocated among the Nonnon-Defaulting defaulting Revolving Lenders in accordance with their respective Applicable Percentages (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph (c), the percentage Percentage of the Aggregate Revolving Commitment represented by such provided that no Revolving Lender’s Revolving Commitment at the time of such reallocation calculated disregarding the Revolving Commitments of the Defaulting Lenders at such time) but only to the extent that the sum of all Non-Defaulting Lenders’ Revolving Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not shall exceed the sum of all Non-Defaulting Lenders’ its Revolving Commitments;
(ii) if the reallocation described in clause paragraph (i) above cannot, or can only partially, be effected, the Borrower Borrowers shall within one Business Day following notice by the Administrative Agent (A) first, prepay the portion amount of such the Swingline Loans equal to Defaulting Lender’s Swingline Exposure that has not been reallocated Applicable Percentage thereof after giving effect to any partial reallocation pursuant to paragraph (i) above and (B) second, cash collateralize for the benefit of the Issuing Banks the portion of such Defaulting Lender’s LC Exposure that has not been reallocated Applicable Percentage of Letter of Credit Obligations (after giving effect to any partial reallocation pursuant to paragraph (i) above) in accordance with the procedures set forth in Section 2.05(i2.07(c) and for so long as any such LC Exposure is Letter of Credit Obligations are outstanding;
(iii) if the Borrower Borrowers cash collateralizes collateralize any portion of such Defaulting Lender’s LC Exposure Applicable Percentage of Letter of Credit Obligations pursuant to clause (ii) abovethis Section 2.22(d), the Borrower Borrowers shall not be required to pay participation any fees to such Defaulting Lender pursuant to Section 2.12(b2.07(c) with respect to such the portion of such Defaulting Lender’s LC Exposure for so long as Applicable Percentage of Letter of Credit Obligations which have been cash collateralized (and the Defaulting Lender shall not be entitled to receive any such Defaulting Lender’s LC Exposure is cash collateralizedfees);
(iv) if any portion the Defaulting Lender’s Applicable Percentage of the LC Exposure Letter of such Defaulting Lender is Credit Obligations are reallocated pursuant to clause (i) abovethis Section 2.22, then the letter of credit fees payable to the non-defaulting Revolving Lenders pursuant to Sections 2.12(a) and 2.12(bSection 2.07(c) shall be adjusted to give effect to such reallocationaccordingly; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure Applicable Percentage of Letter of Credit Liabilities is neither reallocated nor not cash collateralized or reallocated pursuant to clause (i) or (ii) abovethis Section 2.22(d), then, then without prejudice to any rights or remedies of any the Issuing Bank or any other Lender hereunder, all participation letter of credit fees payable under Section 2.12(b2.07(c) with respect to such Defaulting Lender’s LC Exposure Applicable Percentage of Letter of Credit Obligations shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and.
(de) so So long as such Revolving any Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew extend or extend increase any Letter of Credit, Credit unless in each case it is reasonably satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure or LC Exposure, as applicable, will be fully 100% covered by the Revolving Commitments of the Nonnon-Defaulting defaulting Revolving Lenders and/or cash collateral will be provided by the Borrower Borrowers in accordance with Section 2.20(c2.07(c), and participating interests in any such funded Swingline Loan or in any such newly issued, amended, reviewed extended or extended increased Letter of Credit will or newly made Swingline Loan shall be allocated among the Nonnon-Defaulting defaulting Revolving Lenders in a manner consistent with Section 2.20(c)(i2.22(d)(i) (and such Defaulting Lender Lenders shall not participate therein). In the event that .
(xf) a Bankruptcy Event with respect to a Revolving Lender Parent shall have occurred following the date hereof and for so long as such Bankruptcy Event shall continue or (y) the Swingline Lender or any Issuing Bank has a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan, and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless the Swingline Lender or such Issuing Bank, as the case may be, shall have entered into arrangements with the Borrower or such Revolving Lender satisfactory to the Swingline Lender or such Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the Borrower, Issuing Bank and the Swingline Lender and each Issuing Bank each agree agrees that a Defaulting Lender has adequately remedied all matters that which caused such Lender to be become a Defaulting Lender (a “Restored Lender”), then the Applicable Percentages of Swingline Exposure Loans and LC Exposure Letter of Credit Obligations of the Revolving Lenders shall be reallocated in accordance with their Applicable Percentages readjusted to reflect the inclusion of such Lender’s Revolving Commitments and on such date such Restored Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) or participations in the Revolving Loans as the Administrative Agent shall determine may be necessary in order for such Restored Lender to hold such Revolving Loans or participations in accordance with its Applicable Percentage Percentage.
(with the term “Applicable Percentage” meaning, g) The rights and remedies with respect to a Defaulting Lender under this Section 2.22 are in addition to any Lender for purposes of reallocations to be made pursuant to this paragraphother rights and remedies which the Borrower, the percentage of Administrative Agent, the Aggregate Revolving Commitment represented by Issuing Bank or the Swingline Lender, as applicable, may have against such Defaulting Lender’s Revolving Commitment at the time of such reallocation calculated including the Revolving Commitment of such Restored Lender but disregarding the Revolving Commitments of the Defaulting Lenders at such time).
Appears in 2 contracts
Sources: Revolving Credit Agreement (Joe's Jeans Inc.), Revolving Credit Agreement (Joe's Jeans Inc.)
Defaulting Lenders. Notwithstanding any provision of this Agreement any Loan Document to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unused amount portion of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a2.11(a);
(b) the Revolving Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided that any amendment, waiver or other modification requiring the consent of all Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereof;
(c) if any Swingline Exposure or LC Exposure exists at the time such Revolving Lender becomes a Defaulting Lender Lender, then:
(i) all or any part of the Swingline Exposure (other than any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c) and, in the case of any Defaulting Lender that is the Swingline Lender, with its Swingline Exposure being determined as if it were not the Swingline Lender) and LC Exposure of such Defaulting Lender (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.05(d) and Section 2.05(e)) shall be reallocated (effective as of the date such Lender becomes a Defaulting Lender) among the Non-Defaulting Lenders in accordance with their respective Applicable Percentages (with for the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to such reallocation, such Defaulting Lender’s Commitment shall be made pursuant to this paragraph (cdisregarded in determining the Non-Defaulting Lenders’ respective Applicable Percentages), the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated disregarding the Revolving Commitments of the Defaulting Lenders at such time) but only to the extent that (A) the sum of all Non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure (other than any portion thereof referred to in the parenthetical clause above) and LC Exposure (other than any portion thereof referred to in the parenthetical clause above) does not exceed the sum of all Non-Defaulting Lenders’ Commitments and (B) after giving effect to any such reallocation, no Non-Defaulting Lender’s Revolving CommitmentsCredit Exposure shall exceed such Non-Defaulting Lender’s Commitment;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall shall, within one three Business Day Days following the Borrower’s receipt of written notice by from the Administrative Agent Agent, (A) first, prepay the portion of such Defaulting Lender’s Swingline Exposure (other than any portion thereof referred to in the parenthetical in such clause (i)) that has not been reallocated and (B) second, cash collateralize for the benefit of the Issuing Banks the portion of such Defaulting Lender’s LC Exposure that has not been reallocated in accordance with the procedures set forth in Section 2.05(i2.05(k) for the benefit of the applicable Issuing Banks only the Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure (other than any portion thereof referred to in the parenthetical in such clause (i)) that has not been reallocated for so long as such LC Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower shall not be required to pay any letter of credit participation fees to such Defaulting Lender pursuant to Section 2.12(b2.11(b) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as during the period such portion of such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the such Defaulting Lender’s LC Exposure of such Defaulting Lender is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(aSection 2.11(a) and 2.12(bSection 2.11(b) shall be adjusted to give effect to such reallocation; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure that is subject to reallocation pursuant to clause (i) above is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all Letter of Credit participation fees that otherwise would have been payable to such Defaulting Lender under Section 2.12(b2.11(b) with respect to such Defaulting Lender’s unreallocated LC Exposure shall be payable to the Issuing Banks (and allocated among them Banks, ratably based on the amount portion of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) , until and to the extent that such LC Exposure is reallocated and/or cash collateralizedcollateralized pursuant to clause (i) or (ii) above; and
(d) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew amend or extend any Letter of Credit, unless in each case case, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure or LC Exposure, as applicable, will be fully 100% covered by the Revolving Commitments of the Non-Defaulting Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 2.20(c), and participating interests in any such funded newly made Swingline Loan or in any such newly issued, amended, reviewed amended or extended Letter of Credit will shall be allocated among the Non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein). In the event that (x) a Bankruptcy Event with respect to a Revolving any Lender Parent shall have occurred following the date hereof Closing Date and for so long as such Bankruptcy Event shall continue or (y) the Swingline Lender or any continue, no Issuing Bank has a good faith belief that shall be required to issue, amend, extend or increase any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend creditLetter of Credit, and the Swingline Lender shall not be required to fund any Swingline Loan, and no unless such Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless the Swingline Lender or such Issuing Bank, as the case may be, shall have entered into arrangements with the Borrower or such Revolving the applicable Lender reasonably satisfactory to such Issuing Bank or the Swingline Lender or such Issuing BankLender, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the Borrower, the Swingline Lender and each Issuing Bank each agree agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender (a “Restored Lender”), then the Swingline Exposure Exposures and LC Exposure Exposures of the Revolving Lenders shall be reallocated in accordance with their Applicable Percentages readjusted to reflect the inclusion of such Lender’s Commitment, and on such date such Restored Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Restored Lender to hold such Revolving Loans in accordance with its Applicable Percentage Percentage, and such Lender shall thereupon cease to be a Defaulting Lender (but shall not be entitled to receive any commitment fees accrued during the period when it was a Defaulting Lender, and all amendments, waivers or modifications effected without its consent in accordance with the term “Applicable Percentage” meaningprovisions of Section 9.02 and this Section during such period shall be binding on it). The rights and remedies against, and with respect to any to, a Defaulting Lender for purposes of reallocations to be made pursuant to under this paragraphSection 2.20 are in addition to, and cumulative and not in limitation of, all other rights and remedies that the Administrative Agent and each Lender, each Issuing Bank, the percentage of Swingline Lender, the Aggregate Revolving Commitment represented by Borrower or any other Loan Party may at any time have against, or with respect to, such Defaulting Lender’s Revolving Commitment at the time of such reallocation calculated including the Revolving Commitment of such Restored Lender but disregarding the Revolving Commitments of the Defaulting Lenders at such time).
Appears in 2 contracts
Sources: Revolving Credit Agreement (Marathon Petroleum Corp), Revolving Credit Agreement (MPLX Lp)
Defaulting Lenders. (a) Notwithstanding any provision of this Agreement to the contrary, if one or more Lenders become Defaulting Lenders, then, upon notice to such effect by the Administrative Agent (which notice shall be given promptly after the Administrative Agent becomes aware that any Revolving Lender becomes shall have become a Defaulting Lender, then including as a result of being advised thereof by the Issuing Bank, the Swingline Lender, GrafTech or a Borrower) (such notice being referred to as a “Defaulting Lender Notice”), the following provisions shall apply for so long as any such Revolving Lender is a Defaulting Lender:
(ai) no commitment fees fee shall cease to accrue on the unused amount of the Revolving any Commitment of such any Defaulting Lender pursuant to Section 2.12(a2.11(a);
(bii) the Revolving Commitment and Revolving Exposure of such each Defaulting Lender shall not be included disregarded in determining whether the Required Lenders or any other requisite Lenders shall have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendmentwaiver, waiver amendment or other modification pursuant to Section 9.02); provided that any any, waiver, amendment, waiver or other modification requiring that, disregarding the effect of this clause (ii), requires the consent of all Lenders or of all Lenders affected thereby shall, except as otherwise provided in Section 9.02, shall continue to require the consent of such each Defaulting Lender in accordance with the terms hereof;
(ciii) if any Swingline Exposure Loans are outstanding or any LC Exposure exists at the time such Revolving any Lender becomes a Defaulting Lender (each such Swingline Loan 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) all or any part subject to clause (C) below, the obligation of each Non-Defaulting Lender to purchase participations in each Reallocated Swingline Loan under Section 2.19(c) shall be adjusted to be determined on the Swingline Exposure and LC Exposure basis of such Lender’s Adjusted Applicable Percentage (and all references in such Section to “Applicable Percentage” shall be deemed to be references to “Adjusted Applicable Percentage”);
(B) subject to clause (C) below, the participation of each Non-Defaulting Lender in each Reallocated Letter of Credit shall be adjusted to be determined under Section 2.05(d) on the basis of such Lender’s Adjusted Applicable Percentage (and all references in such Section to “Applicable Percentage” shall be deemed to be references to “Adjusted Applicable Percentage”);
(C) notwithstanding the foregoing:
(1) if any Lender that becomes a Defaulting Lender shall be reallocated among the Swingline Lender or an Affiliate thereof, no adjustment shall be made pursuant to clause (A) above on account of such Lender becoming a Defaulting Lender;
(2) if any Lender that becomes a Defaulting Lender shall be the Issuing Bank or an Affiliate thereof, no adjustment shall be made pursuant to clause (B) above with respect to participations in any Letter of Credit issued by the Issuing Bank; and
(3) if the sum of (x) all the Defaulting Lenders’ Applicable Percentages of the aggregate principal amount of the Reallocated Swingline Loans (the “Defaulting Lender Swingline Exposures”) and (y) all the Defaulting Lenders’ Applicable Percentages of the LC Exposure attributable to the Reallocated Letters of Credit (the “Defaulting Lender LC Exposures” and, together with the Defaulting Lender Swingline Exposures, the “Defaulting Lender LC/Swingline Exposures”) exceeds the unused portion of the Aggregate Commitment of the Lenders other than the Defaulting Lenders as of the time the adjustments are to be made pursuant to clauses (A) and (B) above (such unused portion being referred to as the “Maximum Incremental Participations Amount”), then (I) the incremental amount of participations acquired by the Non-Defaulting Lenders under clause (A) above (the “Incremental Swingline Participations”) shall not exceed at any time the Maximum Incremental Participations Amount multiplied by a fraction of which the numerator is the aggregate principal amount of the Reallocated Swingline Loans at such time and the denominator is the Defaulting Lender LC/Swingline Exposure at such time and (II) the incremental amount of participations acquired by the Non-Defaulting Lenders under clause (B) above (the “Incremental LC Participations” and, together with the Incremental Swingline Participations, the “Incremental LC/Swingline Participations”) shall not exceed at any time the Maximum Incremental Participations Amount multiplied by a fraction of which the numerator is the LC Exposure attributable to the Reallocated Letters of Credit and the denominator is the Defaulting Lender LC/Swingline Exposure at such time;
(D) if the Incremental LC/Swingline Participations shall be less than the Defaulting Lender LC/Swingline Exposure as a result of the circumstances described in clause (C)(3) above, then the Borrowers shall, within one Business Day after receipt of written notice to that effect from the Administrative Agent, (1) first, prepay the Reallocated Swingline Loans and (2) second, 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 Lender LC/Swingline Exposure over the Incremental LC/Swingline Participations;
(E) if any Reallocated Letter of Credit shall have been cash collateralized by the Borrowers pursuant to clause (D) above, then the Borrowers shall not be required to pay any letter of credit participation fees to the Lenders that are Defaulting Lenders pursuant to Section 2.11(b) with respect to the portion of such Reallocated Letter of Credit that is so cash collateralized;
(F) if an adjustment shall have been made pursuant to clause (B) above to the participations of the Non-Defaulting Lenders in Reallocated Letters of Credit, then the letter of credit participation fees that would otherwise have been payable to the Lenders that are Defaulting Lenders pursuant to Section 2.11(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 Lenders that are Non-Defaulting Lenders in accordance with their respective Adjusted Applicable Percentages Percentages;
(with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph (c), the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated disregarding the Revolving Commitments of G) if the Defaulting Lenders at such time) but only to the extent that the sum of all Non-Defaulting Lenders’ Revolving Exposures plus such Defaulting Lender’s Swingline Exposure and Lender LC Exposure does not at any time shall exceed the sum of all Non-Defaulting Lenders’ Revolving Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent (A) first, prepay Incremental LC Participations at such time and the portion of the Reallocated Letters of Credit cash collateralized at such Defaulting Lender’s Swingline Exposure that has not been reallocated and (B) second, cash collateralize for the benefit of the Issuing Banks the portion of such Defaulting Lender’s LC Exposure that has not been reallocated in accordance with the procedures set forth in Section 2.05(i) for so long as such LC Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure time pursuant to clause (ii) above, the Borrower shall not be required to pay participation fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such Defaulting Lender is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(b) shall be adjusted to give effect to such reallocation; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (iiD) above, then, without prejudice to any rights or remedies of any the Issuing Bank or any other Non-Defaulting Lender hereunder, all letter of credit participation fees payable to the Lenders that are Defaulting Lenders under Section 2.12(b2.11(b) with respect to such the portion of the Defaulting Lender’s Lender LC Exposure equal to such excess shall instead ratably accrue for the accounts of, and be payable to to, the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(dH) so long the Revolving Exposure of each Non-Defaulting Lender shall be determined after giving effect to the Incremental LC/Swingline Participations acquired by such Lender under the foregoing clauses of this clause (iii);
(iv) in the event any Swingline Loan shall be made, or any Letter of Credit shall be issued or amended to increase the amount thereof, (A) the participations of the Non-Defaulting Lenders therein shall be determined in the manner set forth in clause (iii)(A) or (iii)(B) above, as applicable, as if such Revolving Lender is Swingline Loan or Letter of Credit shall have been a Reallocated Swingline Loan or a Reallocated Letter of Credit, as the case may be, and (B) letter of credit participation fees that would otherwise have been payable to the Lenders that are Defaulting LenderLenders pursuant to Section 2.12(b) in respect of any such Letter of Credit shall be subject to clause (iii)(F) above; provided, however, that, notwithstanding anything to the contrary set forth herein, the Swingline Lender shall not be required to fund make any Swingline Loan Loan, and no the Issuing Bank shall not be required to issue, amendextend, renew or extend increase the amount of any Letter of Credit, unless in each case unless it is satisfied that the related exposure and Defaulting Lenders’ Applicable Percentage of such Swingline Loan or of the Defaulting Lender’s then outstanding Swingline LC Exposure or LC Exposure, as applicable, attributable to such Letter of Credit will be fully entirely covered by the Revolving Commitments participations therein of the Non-Defaulting Lenders and/or and/or, in the case of the LC Exposure, cash collateral provided by the Borrowers (in a manner and under documentation satisfactory to the Issuing Bank); and
(v) any amount payable to or for the account of any Defaulting Lender in its capacity as a Lender hereunder (whether on account of principal, interest, fees or otherwise, and including any amounts payable to such Defaulting Lender pursuant to Section 2.11, but excluding any amounts payable to such Defaulting Lender pursuant to Sections 2.13, 2.14, 2.15, 2.17(b) and 9.04) shall, in lieu of being distributed to such Defaulting Lender, be retained by the Administrative Agent in a segregated account and, subject to any applicable requirements of law, (A) be applied, at such time or times as may be determined by the Administrative Agent, (1) first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder, (2) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to the Swingline Lender and the Issuing Bank in respect of such Defaulting Lender’s participations in Swingline Loans and Letters of Credit (and to the extent any such amounts shall have been paid by Non-Defaulting Lenders as a result of adjustments pursuant to clause (iii) above, to reimburse such Non-Defaulting Lenders for such amounts), (3) third, to cash collateralize participation obligations of such Defaulting Lender in respect of outstanding Swingline Loans and Letters of Credit and (4) fourth, to the funding of such Defaulting Lender’s Applicable Percentage of any Borrowing in respect of which such Defaulting Lender 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 Lender in respect of future Revolving Loans hereunder, (C) to the extent not applied or held as aforesaid, be applied, pro rata, to the payment of any amounts owing to the Borrowers or the Non- Defaulting Lenders as a result of any final and nonappealable judgment of a court of competent jurisdiction obtained by a Borrower or any Non-Defaulting Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations hereunder, (D) to the extent not applied or held as aforesaid, be applied, pro rata, to the reimbursement to each Borrower of its costs of maintaining any cash collateral provided by such Borrower in accordance with this Section 2.20(c)2.20 (which cost shall be presumed to be equal to the average rate of interest expense paid by such Borrower hereunder during the applicable period in respect of Loans denominated in the applicable currency, or if and participating interests in any to the extent such funded Swingline Loan Loans are not outstanding during the applicable period, the average rate of one month LIBOR during such period for the applicable currency plus the Applicable Rate) and (E) to the extent not applied or in any such issuedheld as aforesaid, amended, reviewed or extended Letter of Credit will be allocated among the Non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i) (and distributed to such Defaulting Lender shall not participate therein). or as otherwise directed by a court of competent jurisdiction.
(b) In the event that (x) a Bankruptcy Event with respect to a Revolving Lender Parent shall have occurred following the date hereof and for so long as such Bankruptcy Event shall continue or (y) the Swingline Lender or any Issuing Bank has a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan, and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless the Swingline Lender or such Issuing Bank, as the case may be, shall have entered into arrangements with the Borrower or such Revolving Lender satisfactory to the Swingline Lender or such Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the BorrowerSwingline Lender, the Swingline Issuing Bank, GrafTech and the Borrowers shall have agreed that a Lender and each Issuing Bank each agree that is a Defaulting Lender has adequately remedied all matters that caused such Lender to become a Defaulting Lender, then (i) such Lender shall cease to be a Defaulting Lender for all purposes hereof, (a “Restored Lender”), then ii) the Swingline Exposure and LC Exposure obligations of the Revolving Lenders to purchase participations in Swingline Loans under Section 2.19(c) and the participations of the Lenders in Letters of Credit under Section 2.05(d) shall be reallocated in accordance with their readjusted to be determined on the basis of such Lenders’ Applicable Percentages and on (iii) such date such Restored Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may to be necessary in order for such Restored Lender the Revolving Loans to hold such Loans be held by the Lenders in accordance with its their Applicable Percentage Percentages.
(with the term “Applicable Percentage” meaning, with respect to c) No Commitment of any Lender for purposes shall be increased or otherwise affected and, except as otherwise expressly provided in this Section, performance by the Borrowers of reallocations their obligations hereunder and under the other Loan Documents shall not be excused or otherwise modified, as a result of the operation of this Section. The rights and remedies against a Defaulting Lender under this Section are in addition to be made pursuant to this paragraphother rights and remedies that the Borrowers, the percentage Administrative Agent, the Swingline Lender, the Issuing Bank or any Non-Defaulting Lender may have against such Defaulting Lender (and, for the avoidance of doubt, each Non-Defaulting Lender shall have a claim against any Defaulting Lender for any losses it may suffer as a result of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time operation of such reallocation calculated including the Revolving Commitment of such Restored Lender but disregarding the Revolving Commitments of the Defaulting Lenders at such timethis Section).
Appears in 2 contracts
Sources: Credit Agreement (Graftech International LTD), Credit Agreement (Graftech International LTD)
Defaulting Lenders. (a) Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lenderapply:
(ai) commitment fees Facility Fees shall cease to accrue on the unused amount of the Revolving Commitment portion of such Defaulting Lender pursuant to Section 2.12(a);Lender’s Commitment.
(bii) the Revolving The Commitment and Revolving Outstanding Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 9.028.2); provided that any amendmentwaiver, waiver amendment or other modification requiring the consent of all Lenders or all Lenders each affected thereby shall, except as otherwise provided in Section 9.02, Lender shall require the consent of such Defaulting Lender (in accordance with such case, to the terms hereof;extent such Defaulting Lender is an affected Lender).
(ciii) if any Swingline Exposure Unless a Default or LC Exposure exists at the time such Revolving Lender becomes a Defaulting Lender then:
(i) an Unmatured Default shall have occurred and be continuing, all or any part of the Swingline Exposure and such Defaulting Lender’s LC Exposure of such Defaulting Lender shall be reallocated among the Nonnon-Defaulting Lenders in accordance with their respective Applicable Percentages (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph (c), the percentage Pro Rata Shares of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated disregarding the Revolving Commitments of the Defaulting Lenders at such time) Commitment, but only to the extent that the sum of all Nonnon-Defaulting Lenders’ Revolving Outstanding Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the sum total of all Nonnon-Defaulting Lenders’ Revolving Commitments;.
(iiiv) if If the LC Exposure of such Defaulting Lender is reallocated pursuant to clause (iii) above, then the LC Participation Fees payable to the Lenders pursuant to Section 2.6.2 shall be adjusted in accordance with such reallocation.
(v) If (or to the extent that) the reallocation described in clause (iiii) above cannot, or can only partially, be effected, the each Borrower shall shall, within one Business Day following notice by the Administrative Agent (A) first, prepay the portion of and until and for so long as such Defaulting Lender’s Swingline Exposure that has not been reallocated and (B) secondcondition shall exist), cash collateralize for the benefit of the Issuing Banks such Borrower’s obligations corresponding to the portion of such Defaulting Lender’s non-reallocated LC Exposure that has not been reallocated is attributable to Letters of Credit issued for the account of such Borrower (in each case, as determined after giving effect to any partial reallocation pursuant to clause (iii) above) in accordance with the procedures set forth in Section 2.05(i2.4(i) for so long as such unreallocated LC Exposure is outstanding;outstanding or as otherwise provided pursuant to Section 2.22(c) below.
(iiivi) if the If a Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (iiv) above, the such Borrower shall not be required to pay participation any fees to such Defaulting Lender pursuant to Section 2.12(b) 2.6.2 with respect to such portion of such Defaulting Lender’s LC Exposure for so long as during the period such Defaulting Lender’s LC Exposure is cash collateralized;.
(ivvii) if The Agent shall adjust the allocation of payments hereunder to ensure that a Defaulting Lender does not receive payment in respect of any portion Loan or LC Disbursement that it did not fund or to reflect any of the LC Exposure of such Defaulting Lender is reallocated pursuant actions or adjustments referred to clause in this Section 2.22.
(b) If (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(b) shall be adjusted to give effect to such reallocation; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all participation fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless in each case it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure or LC Exposure, as applicable, will be fully covered by the Revolving Commitments of the Non-Defaulting Lenders and/or cash collateral provided by the Borrower in accordance with Section 2.20(c), and participating interests in any such funded Swingline Loan or in any such issued, amended, reviewed or extended Letter of Credit will be allocated among the Non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein). In the event that (x) a Bankruptcy Event with respect to a Revolving the parent company of any Lender Parent shall have occurred occur following the date hereof and for so long as such Bankruptcy Event event shall continue or (yii) the Swingline Lender or any Issuing Bank has shall have a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender such Issuing Bank shall not be required to fund any Swingline Loan, and no Issuing Bank shall be required to issue, amend, renew amend or extend increase any Letter of Credit, unless the Swingline Lender or such Issuing Bank, as the case may be, Bank shall have entered into arrangements with the applicable Borrower or such Revolving Lender reasonably satisfactory to the Swingline Lender or such Issuing Bank, as Bank to mitigate the case may be, to defease any risk to it in respect of such Lender hereunder. failing to satisfy its participating interest therein.
(c) In the event that the Administrative Agent, the Borrower, the Swingline Lender each Borrower and each Issuing Bank each shall agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender (a “Restored Lender”), then the Swingline Exposure and LC Exposure of the Revolving Lenders shall be reallocated in accordance with their Applicable Percentages readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Restored Lender shall purchase at par such of the Revolving Loans and participations in LC Disbursements of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Restored Lender to hold such Loans in accordance with its Applicable Percentage (Pro Rata Share, and all cash collateral then being held pursuant to Section 2.22(a)(v) above in connection with the term “Applicable Percentage” meaningLC Exposure of such Defaulting Lender shall be released and returned to the applicable Borrower.
(d) Except as expressly provided in this Section 2.22 in connection with the obligations of the Issuing Banks, with the obligation of each Lender and Issuing Bank to fund the full amount of its Commitment and to make Loans, Advances and other extensions of credit hereunder shall not be released or diminished in any respect by any other Lender becoming a Defaulting Lender.
(e) None of the foregoing provisions of this Section 2.22 shall be deemed to effect, diminish or release any rights, claims or causes of action the Borrowers may have against any Lender for purposes of reallocations to be made pursuant to this paragraph, the percentage of the Aggregate Revolving Commitment represented by such that becomes a Defaulting Lender’s Revolving Commitment at the time of such reallocation calculated including the Revolving Commitment of such Restored Lender but disregarding the Revolving Commitments of the Defaulting Lenders at such time).
Appears in 2 contracts
Sources: Credit Agreement (Union Electric Co), Credit Agreement (Union Electric Co)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unused amount portion of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a2.10(a);
(b) the Revolving Commitment Loans, Letter of Credit Exposures and Revolving Exposure unused Commitments of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 9.02); provided that any amendment, waiver or other modification requiring the consent of all Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereof;
(c) if any Swingline Exposure or LC Letter of Credit Exposure exists at the time such Revolving a Letter of Credit Lender becomes a Defaulting Lender thenLender:
(i) all or any part no Issuing Lender with respect to each Class of the Swingline Exposure and LC Exposure of Commitment held by such Defaulting Lender shall be reallocated among required to issue, amend or increase any Letter of Credit of such Class, unless any Letter of Credit Exposure that would result therefrom is fully covered or eliminated by any combination of the following (A) such Defaulting Lender’s Letter of Credit Exposure shall be reallocated, as to any outstanding and future Letters of Credit, as applicable, to the Non-Defaulting Lenders as provided in accordance with their respective Applicable Percentages Section 2.18(d)(i) and (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph (c), the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated disregarding the Revolving Commitments of the Defaulting Lenders at such timeB) but only to the extent that the sum of all Non-Defaulting Lenders’ Revolving Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the sum of all Non-Defaulting Lenders’ Revolving Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one five Business Day Days following notice by the Administrative Agent (A) firstcash collateralize only to the extent the Defaulting Lender is not the Issuing Lender for such Letter of Credit, prepay the portion of such Defaulting Lender’s Swingline Letter of Credit Exposure that has not been reallocated and (B) second, cash collateralize for the benefit of the Issuing Banks the portion of such Defaulting Lender’s LC Exposure that has not been reallocated in accordance with the procedures set forth in Section 2.05(i2.03(j) for so long as such LC Exposure is outstanding;
in an amount at least equal to the aggregate amount of the Unreallocated Portion of the obligations (iiicontingent or otherwise) if the Borrower cash collateralizes any portion of such Defaulting Lender in respect of such Letter of Credit, in which case the obligations of the Non-Defaulting Lenders in respect of such Letter of Credit will, subject to subclause (A) below, be on a pro rata basis in accordance with the Letter of Credit Commitments of the Non-Defaulting Lenders, and the pro rata payment provisions of Section 2.16 shall be deemed adjusted to reflect this provision; provided, that (A) the sum of each Non-Defaulting Lender’s LC total Letter of Credit Exposure may not in any event exceed the Letter of Credit Commitments of such Non-Defaulting Lender, and (B) neither any such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto nor any such cash collateralization or reduction will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Issuing Lender, or any other Lender may have against such Defaulting Lender, or cause such Defaulting Lender to clause be a Non-Defaulting Lender; and
(ii) above, the Borrower shall not be required to pay any participation fees to such Defaulting Lender pursuant to Section 2.12(b2.10(b) with respect to such portion Defaulting Lender’s Letter of Credit Exposure during the period such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC Letter of Credit Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such Defaulting Lender is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(b) shall be adjusted to give effect to such reallocation; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) above; and
(iii) if any Defaulting Lender’s Letter of Credit Exposure is not cash collateralized or reallocated pursuant to clause (iii) above, then, without prejudice to any rights or remedies of any the Issuing Bank or any other Lender Lenders hereunder, all participation fees payable under pursuant to Section 2.12(b2.10(b) with respect to such Defaulting Lender’s LC Letter of Credit Exposure shall be payable to the relevant Issuing Banks (and allocated among them ratably based on the amount of Lender until such Defaulting Lender’s LC Exposure attributable to Letters Letter of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralized; andcollateralized or reallocated.
(d) so long as such Revolving if a Letter of Credit Lender is becomes, and during the period it remains, a Defaulting Lender, the Swingline Lender following provisions shall not be required apply with respect to fund the reallocation of any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless in each case it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure or LC Exposure, as applicable, will be fully covered by the Revolving Commitments of the Non-Defaulting Lenders and/or cash collateral provided by the Borrower in accordance with Section 2.20(c), and participating interests in any such funded Swingline Loan or in any such issued, amended, reviewed or extended Letter of Credit will Exposure of such Defaulting Lender pursuant to Section 2.18(c)(i):
(i) the Letter of Credit Exposure of each such Defaulting Lender shall be allocated reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Non-Defaulting Lenders pro rata in accordance with their respective Letter of Credit Commitments; provided, that (A) the sum of each Non-Defaulting Lender’s total Letter of Credit Exposure may not in any event exceed the Letter of Credit Commitments of such Non-Defaulting Lender, and (B) neither any such reallocation nor any payment by a manner consistent with Section 2.20(c)(i) (and such Non-Defaulting Lender shall not participate therein). In pursuant thereto nor any such cash collateralization or reduction will constitute a waiver or release of any claim the event that (x) a Bankruptcy Event with respect to a Revolving Lender Parent shall have occurred following the date hereof and for so long as such Bankruptcy Event shall continue or (y) the Swingline Lender or any Issuing Bank has a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend creditBorrower, the Swingline Lender shall not be required to fund any Swingline Loan, and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless the Swingline Lender or such Issuing Bank, as the case may be, shall have entered into arrangements with the Borrower or such Revolving Lender satisfactory to the Swingline Lender or such Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the BorrowerIssuing Lender, the Swingline or any other Lender and each Issuing Bank each agree that a may have against such Defaulting Lender has adequately remedied all matters that caused Lender, or cause such Defaulting Lender to be a Non-Defaulting Lender; and
(ii) to the extent that any portion (the “Unreallocated Portion”) of the Defaulting Lender’s Letter of Credit Exposure cannot be so reallocated, the Borrower will, not later than five Business Days after notice by the Administrative Agent, cash collateralize only to the extent the Defaulting Lender (a “Restored is not the Issuing Lender for such Letter of Credit such Defaulting Lender”), then the Swingline ’s Letter of Credit Exposure and LC Exposure of the Revolving Lenders shall be reallocated in accordance with their Applicable Percentages and on such date such Restored Lender shall purchase the procedures set forth in Section 2.03(j), in an amount at par such least equal to the aggregate amount of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Restored Lender to hold such Loans in accordance with its Applicable Percentage (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph, the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time Unreallocated Portion of such reallocation calculated including the Revolving Commitment Letter of such Restored Lender but disregarding the Revolving Commitments of the Defaulting Lenders at such time)Credit Exposure.
Appears in 2 contracts
Sources: Credit Agreement (NRG Yield, Inc.), Credit Agreement (GenOn Energy, Inc.)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unused amount unfunded portion of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a2.03(a);
(b) the Revolving Commitment and Revolving Outstanding Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 9.02); provided that any amendment8.01, waiver or other modification requiring than those which require the consent of all Lenders or all Lenders of each affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereofLender);
(c) if any Swingline Exposure or LC Exposure exists Obligations exist at the time such Revolving Lender becomes a Defaulting Lender Lender, then:
(i) so long as no Default or Event of Default has occurred and is continuing, all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender Obligations shall be reallocated among the Nonnon-Defaulting Lenders in accordance with their respective Applicable Percentages (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph (c), the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated disregarding the Revolving Commitments of the Defaulting Lenders at such time) Pro Rata Shares but only to the extent that the sum of all Nonnon-Defaulting Lenders’ Revolving Exposures LC Obligations plus such Defaulting Lender’s Swingline Exposure and LC Exposure Obligations does not exceed the sum total of all Nonnon-Defaulting Lenders’ Revolving Commitments and the sum of all non-Defaulting Lenders’ Outstanding Credit Exposure plus such Defaulting Lender’s LC Obligations does not exceed the total of all non-Defaulting Lenders’ Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent (A) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (B) secondAgent, cash collateralize for the benefit of the Issuing Banks LC Issuers only the portion of Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure that has not been reallocated Obligations (after giving effect to any partial reallocation pursuant to clause (i) above) by depositing funds in accordance with the procedures set forth in Section 2.05(i) Facility LC Collateral Account for so long as such LC Exposure is Obligations are outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure Obligations pursuant to clause (ii) above, the Borrower shall not be required to pay participation fees to such Defaulting Lender pursuant to Section 2.12(b) any Facility Fees or LC Fees with respect to such portion of such Defaulting Lender’s LC Exposure for so long as Obligations during the period such Defaulting Lender’s LC Exposure is Obligations are cash collateralized;
(iv) if any portion the LC Obligations of the LC Exposure of such non-Defaulting Lender is Lenders are reallocated pursuant to clause (i) above, then the fees LC Fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(bSection 2.03(c) shall be adjusted to give effect to in accordance with such reallocationnon-Defaulting Lenders’ Pro Rata Shares; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure Obligations is neither reallocated nor cash collateralized nor reallocated pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank the LC Issuers or any other Lender hereunder, all participation fees Facility Fees that otherwise would have been payable under to such Defaulting Lender pursuant to Section 2.12(b2.03(a) (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Obligations) and LC Fees payable to such Defaulting Lender pursuant to Section 2.03(c) with respect to such Defaulting Lender’s LC Exposure Obligations shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) Issuers until and to the extent that such LC Exposure is reallocated Obligations are cash collateralized and/or cash collateralized; andreallocated;
(d) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Bank LC Issuer shall be required to issue, amend, renew issue or extend Modify any Letter of CreditFacility LC, unless in each case it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure or LC Exposure, as applicable, will be fully 100% covered by the Revolving Commitments of the Nonnon-Defaulting Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 2.20(c2.18(c), and participating interests in any such funded Swingline Loan newly issued or in any such issued, amended, reviewed or extended Letter of Credit will Modified Facility LC shall be allocated among the Nonnon-Defaulting Lenders in a manner consistent with Section 2.20(c)(i2.18(c)(i) (and such Defaulting Lender Lenders shall not participate therein). In ;
(e) the event Borrower may, subject to the requirements of Sections 8.04 and 8.07, substitute for such Defaulting Lender another financial institution, which financial institution shall be an Eligible Assignee and shall assume the Commitments of such Defaulting Lender and purchase the Outstanding Credit Exposures held by such Defaulting Lender in accordance with Section 8.07; provided, however, that (xi) no Default shall have occurred and be continuing, (ii) the Borrower shall have satisfied all of its obligations in connection with the Loan Documents with respect to such Defaulting Lender, and (iii) if such assignee is not a Lender, (A) such assignee is acceptable to the Agent and (B) the Borrower shall have paid the Agent a $3,500 administrative fee;
(f) to the extent the Agent receives any payments or other amounts for the account of a Defaulting Lender under the Loan Documents, such Defaulting Lender shall be deemed to have requested that the Agent use such payment or other amount to fulfill such Defaulting Lender’s previously unsatisfied obligations to fund a Revolving Credit Advance or any other unfunded payment obligation of such Defaulting Lender under Section 2.02(d), 2.12(e), 2.16(d) or 7.05;
(g) no Lender shall be deemed to have consented to increase its Commitment pursuant to Section 2.04(c) unless that Lender shall have affirmatively given consent in accordance with that Section; and
(h) for the avoidance of doubt, the Borrower shall retain and reserve its other rights and remedies respecting each Defaulting Lender. If (i) a Bankruptcy Event with respect to a Revolving parent of any Lender Parent shall have occurred occur following the date hereof and for so long as such Bankruptcy Event event shall continue or (yii) the Swingline Lender or any Issuing Bank LC Issuer has a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender such LC Issuer shall not be required to fund Modify any Swingline Loan, and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of CreditFacility LC, unless the Swingline Lender or such Issuing Bank, as the case may be, LC Issuer shall have entered into arrangements with the Borrower or such Revolving Lender Lender, reasonably satisfactory to the Swingline Lender or such Issuing Bank, as the case may be, LC Issuer to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the Borrower, Borrower and the Swingline Lender and LC Issuers each Issuing Bank each agree agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender (a “Restored Lender”), then the Swingline Exposure and LC Exposure of the Revolving Lenders Obligations shall be reallocated in accordance with their Applicable Percentages readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Restored Lender shall purchase at par on a ratable basis such of the Revolving Loans Outstanding Credit Exposures of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Restored Lender to hold such Loans Outstanding Credit Exposures in accordance with its Applicable Percentage (Pro Rata Share, whereupon such Lender shall cease to be a Defaulting Lender. For the purposes of clarity, in the event any Defaulting Lender is reinstated as a non-Defaulting Lender in accordance with the term “Applicable Percentage” meaning, terms hereof (i) no adjustments will be made retroactively with respect to any Lender for purposes of reallocations to be fees accrued or payments made pursuant to this paragraph, the percentage by or on behalf of the Aggregate Revolving Commitment represented Borrower while such Lender was a Defaulting Lender, and (ii) except to the extent otherwise expressly agreed by the affected parties, such reinstatement shall not constitute a waiver or release of any claim of any party hereunder arising from such Lender having been a Defaulting Lender’s Revolving Commitment at the time of such reallocation calculated including the Revolving Commitment of such Restored Lender but disregarding the Revolving Commitments of the Defaulting Lenders at such time).
Appears in 2 contracts
Sources: Credit Agreement (Dte Energy Co), Credit Agreement (Dte Energy Co)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unused amount unfunded portion of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a2.11(a);
(b) the Revolving Commitment Commitments and Revolving Exposure Credit Exposures of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.0210.02); provided provided, that any this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of all Lenders each Lender or all Lenders each Lender affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereofthereby;
(c) if any Swingline Exposure or LC Exposure exists at the time such Revolving Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender (other than any portion of such Swingline Exposure (x) attributable to Swingline Loans made by such Defaulting Lender or (y) with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c)) shall be reallocated among the Nonnon-Defaulting Global Tranche Lenders ratably in accordance with their respective Applicable Percentages (with the term “Applicable Percentage” meaningGlobal Tranche Commitments, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph (c), the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated disregarding the Revolving Commitments of the Defaulting Lenders at such time) but only to the extent that the sum of all Nonno non-Defaulting Lenders’ Revolving Exposures plus such Defaulting Lender’s Swingline Global Tranche Revolving Credit Exposure and LC Exposure does not after giving effect to such reallocation would exceed the sum of all Nonsuch non-Defaulting Lenders’ Revolving CommitmentsLender’s Global Tranche Commitment;
(ii) if the reallocation reallocations described in clause (i) above cannot, or can only partially, be effected, the Borrower Borrowers shall within one Business Day following notice by the Administrative Agent (Ax) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and and/or (By) second, cash collateralize for the benefit of the Issuing Banks only the portion of Borrowers’ obligations corresponding to such Defaulting Lender’s LC Exposure that has not been reallocated (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.05(i2.05(j) for so long as such LC Exposure is outstanding;
(iii) if the Borrower Borrowers cash collateralizes collateralize any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower Borrowers shall not be required to pay participation any fees to such Defaulting Lender pursuant to Section 2.12(b2.11(b) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such Defaulting Lender is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(aSection 2.11(a) and 2.12(bSection 2.11(b) shall be adjusted in accordance with the amounts of such LC Exposure allocated to give effect to such reallocationthe non-Defaulting Lenders; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any the Issuing Bank Banks or any other Lender hereunder, all participation Letter of Credit fees payable under Section 2.12(b2.11(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew amend or extend increase any Letter of Credit, unless in each case it is satisfied that the related exposure Swingline Exposure and the Defaulting Lender’s then outstanding Swingline LC Exposure or LC Exposure, as applicable, will be fully 100% covered by the Revolving Commitments of the Nonnon-Defaulting Global Tranche Lenders and/or cash collateral will be provided by the Borrower Borrowers in accordance with Section 2.20(c2.21(c), and participating interests in any such funded newly made Swingline Loan or in any such issued, amended, reviewed newly issued or extended increased Letter of Credit will shall be allocated among the Nonnon-Defaulting Global Tranche Lenders of the applicable Tranche in a manner consistent with Section 2.20(c)(i2.21(c)(i) (and such Defaulting Lender shall not participate therein). In the event that If (xi) a Bankruptcy Event or Bail-in Action with respect to a Revolving Parent of any Lender Parent shall have occurred occur following the date hereof and for so long as such Bankruptcy Event event shall continue or (yii) the Swingline Lender or any an Issuing Bank has a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan, Loan and no such Issuing Bank shall not be required to issue, amend, renew amend or extend increase any Letter of Credit, unless the Swingline Lender or such Issuing Bank, as the case may be, shall have entered into arrangements with the Borrower Borrowers or such Revolving Lender Lender, reasonably satisfactory to the Swingline Lender or such Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the Borrower, the Swingline Lender and each Issuing Bank each agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender (a “Restored Lender”), then the Swingline Exposure and LC Exposure of the Revolving Lenders shall be reallocated in accordance with their Applicable Percentages readjusted to reflect the inclusion of such Lender’s Commitments and on such date such Restored Lender shall purchase at par such of the Revolving US Tranche Loans and/or Global Tranche Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Restored Lender the Lenders to hold such Loans in accordance with its Applicable Percentage (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph, the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated including the Revolving Commitment of such Restored Lender but disregarding the Revolving Commitments of the Defaulting Lenders at such time)their applicable Tranche Percentages.
Appears in 2 contracts
Sources: Revolving Credit Facility Agreement (Albany International Corp /De/), Revolving Credit Facility Agreement (Albany International Corp /De/)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unused amount unfunded portion of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a2.5(a);
(b) the Revolving Commitment and Revolving Exposure Extensions of Credit of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.0210.1); provided that any this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of all Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereofLender;
(c) if any Swingline Exposure or LC L/C Exposure exists at the time such Revolving Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC L/C Exposure of such Defaulting Lender shall be reallocated among the Nonnon-Defaulting Lenders in accordance with their respective Applicable Revolving Percentages (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph (c), the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated disregarding the Revolving Commitments of the Defaulting Lenders at such time) but only to the extent that the sum of all Nonnon-Defaulting Lenders’ Revolving Exposures Extensions of Credit plus such Defaulting Lender’s Swingline Exposure and LC L/C Exposure does not exceed the sum total of all Nonnon-Defaulting Lenders’ Revolving Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall shall, within one two Business Day Days following notice by the Administrative Agent (Ax) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (By) second, cash collateralize for the benefit of the Issuing Banks Lender only the portion of Borrower’s obligations corresponding to such Defaulting Lender’s LC L/C Exposure that has not been reallocated (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.05(i) 8 for so long as such LC L/C Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC L/C Exposure pursuant to clause (ii) above, the Borrower shall not be required to pay participation any fees to such Defaulting Lender pursuant to Section 2.12(b3.3(a) with respect to such portion of Defaulting Lender’s L/C Exposure during the period such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC L/C Exposure is cash collateralized;
(iv) if any portion the L/C Exposure of the LC Exposure of such non-Defaulting Lender Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(aSection 2.5(a) and 2.12(bSection 3.3(a) shall be adjusted to give effect to in accordance with such reallocationnon-Defaulting Lenders’ Revolving Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC L/C Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any the Issuing Bank Lender or any other Lender hereunder, all participation fees payable under Section 2.12(b3.3(a) with respect to such Defaulting Lender’s LC L/C Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) Lender until and to the extent that such LC L/C Exposure is reallocated and/or cash collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and no the Issuing Bank Lender shall not be required to issue, amend, renew amend or extend increase any Letter of Credit, unless in each case it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline L/C Exposure or LC Exposure, as applicable, will be fully 100% covered by the Revolving Commitments of the Nonnon-Defaulting Lenders and/or cash collateral will be provided by the Borrower in the amount of such Defaulting Lender’s L/C Exposure in accordance with Section 2.20(c2.19(c), and participating interests in any such funded newly made Swingline Loan or in any such issued, amended, reviewed newly issued or extended increased Letter of Credit will shall be allocated among the Nonnon-Defaulting Lenders in a manner consistent with Section 2.20(c)(i2.19(c)(i) (and such Defaulting Lender shall not participate therein). In the event that (x) a Bankruptcy Event with respect to a Revolving Lender Parent shall have occurred following the date hereof and for so long as such Bankruptcy Event shall continue or (y) the Swingline Lender or any Issuing Bank has a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan, and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless the Swingline Lender or such Issuing Bank, as the case may be, shall have entered into arrangements with the Borrower or such Revolving Lender satisfactory to the Swingline Lender or such Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the Borrower, the Swingline Lender and each Issuing Bank each agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender (a “Restored Lender”), then the Swingline Exposure and LC Exposure of the Revolving Lenders shall be reallocated in accordance with their Applicable Percentages and on such date such Restored Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Restored Lender to hold such Loans in accordance with its Applicable Percentage (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph, the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated including the Revolving Commitment of such Restored Lender but disregarding the Revolving Commitments of the Defaulting Lenders at such time).
Appears in 2 contracts
Sources: Credit Agreement (Air Lease Corp), Credit Agreement (Air Lease Corp)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees a. Commitment Fees shall cease to accrue on the unused amount unfunded portion of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a)Lender;
(b) b. the Revolving Commitment and Revolving Outstanding Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required all Lenders or any other requisite the Majority Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided that any amendment, waiver or other modification requiring the consent of all Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereofthis Agreement;
(c) c. if any Swingline Exposure Loans are outstanding or any LC Exposure exists Obligations exist at the time such Revolving a Lender becomes a Defaulting Lender then:
(i) all or any part of the unfunded participations in and commitments with respect to such Swingline Exposure and LC Exposure of such Defaulting Lender Loans or Facility LCs shall be reallocated among the Nonnon-Defaulting Lenders in accordance with their respective Applicable Percentages Shares (with excluding, for the term “Applicable Percentage” meaningavoidance of doubt, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph (c), the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated disregarding the Revolving Commitments of the Defaulting all Term Loan Lenders at such timeand Term Loan Shares) but only to the extent that (x) the sum of all Nonnon-Defaulting Lenders’ Revolving Exposures Outstanding Credit Exposure plus such Defaulting Lender’s Swingline Exposure Lenders’ Revolving Loans and LC Exposure participations in and commitments with respect to Revolving Loans and Facility LCs does not exceed the sum total of all Nonnon-Defaulting Lenders’ Revolving CommitmentsLender’s Commitment Amounts (excluding, for the avoidance of doubt, all Term Loan Lenders and Term Loan Commitment Amounts) and (y) the conditions set forth in Article III are satisfied at such time; provided, that the LC Fees payable to the Lenders shall be determined taking into account such reallocation;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower Borrowers shall within one Business Day following notice by the Administrative Agent (A) first, prepay the portion of such Defaulting Lender’s outstanding Swingline Exposure Loans that has were not been reallocated and (B) second, cash collateralize for the benefit of the Issuing Banks the portion of such Defaulting Lender’s Applicable Share of the LC Exposure that has not been reallocated Obligations in accordance with the procedures set forth in Section 2.05(i) 7.2 for so long as such Facility LC Exposure is outstanding;
(iii) if the Borrower Borrowers cash collateralizes collateralize any portion of such Defaulting Lender’s Facility LC Exposure pursuant to clause (ii) above, the Borrower shall Borrowers are not be required to pay participation fees any LC Fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such portion of Defaulting Lender’s Facility LC Exposure during the period such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s Facility LC Exposure is cash collateralized;; and
(iv) if any portion of the LC Exposure of such Defaulting Lender is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(b) shall be adjusted to give effect to such reallocation; and
(v) if all or any portion of such Defaulting Lender’s Facility LC Exposure is neither reallocated nor not cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank LC Issuer or any other Lender hereunderunder this Agreement, all participation fees payable under Section 2.12(b) LC Fees with respect to such Defaulting Lender’s Facility LC Exposure shall be are payable to the Issuing Banks (and allocated among them ratably based on the amount of applicable LC Issuer until such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such Facility LC Exposure is reallocated and/or cash collateralized; and;
(d) d. so long as such Revolving any Lender is a Defaulting Lender, the Swingline Lender shall not be required no LC Issuer has an obligation to fund issue or Modify any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, Facility LC unless in each case it is satisfied that the related exposure will be 100% covered by cash collateral provided by Borrowers in accordance with Section 2.33.c; and
e. any amount payable to such Defaulting Lender under this Agreement (whether on account of principal, interest, fees or otherwise, but excluding Section 2.35) shall, instead of being distributed to such Defaulting Lender, be retained by Agent in a segregated account and, subject to any applicable requirements of law, be applied at such time or times Agent determines (i) first, to the payment of any amounts owing by such Defaulting Lender to Agent under this Agreement, (ii) second, to the payment of any amounts owing by such Defaulting Lender to each LC Issuer or Swingline Lender under this Agreement, (iii) third, to the funding of any Revolving Loan or the funding or cash collateralization of any participating interest in any Swingline Loan or Facility LC with respect to which such Defaulting Lender has failed to fund its portion as this Agreement requires, as determined by Agent, (iv) fourth, if so determined by Agent and Company, held in such account as cash collateral for future funding obligations of the Defaulting Lender under this Agreement, (v) fifth, to the payment of any amounts owing to Borrowers or the Lenders as a result of any judgment of a court of competent jurisdiction obtained by Borrowers or any Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, and (vi) sixth, if so determined by Agent, distributed to the Lenders other than the Defaulting Lender until the ratio of the Outstanding Credit Exposure of such Lenders to the Aggregate Outstanding Exposure equals such ratio immediately before the Defaulting Lender’s then outstanding failure to fund any portion of any Loans or participations in Facility LCs or Swingline Exposure or LC ExposureLoans and (vii) seventh, as applicable, will be fully covered by the Revolving Commitments of the Non-Defaulting Lenders and/or cash collateral provided by the Borrower in accordance with Section 2.20(c), and participating interests in any such funded Swingline Loan or in any such issued, amended, reviewed or extended Letter of Credit will be allocated among the Non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i) (and to such Defaulting Lender shall not participate therein). In or as otherwise directed by a court of competent jurisdiction; provided, that if such payment is a prepayment of the event that (x) a Bankruptcy Event principal amount of any Loans or Reimbursement Obligations with respect to a Revolving Lender Parent draws under Facility LCs for which the applicable LC Issuer has funded its participation obligations, such payment shall have occurred following be applied solely to prepay the date hereof and for so long as such Bankruptcy Event shall continue or (y) the Swingline Lender or any Issuing Bank has a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline LoanLoans of, and no Issuing Bank shall be required Reimbursement Obligations owed to, all Lenders that are not Defaulting Lenders pro rata prior to issue, amend, renew or extend any Letter of Credit, unless the Swingline Lender or such Issuing Bank, as the case may be, shall have entered into arrangements with the Borrower or such Revolving Lender satisfactory being applied to the Swingline Lender prepayment of any Loans, or such Issuing BankReimbursement Obligations owed to, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the Borrower, the Swingline Lender and each Issuing Bank each agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender (a “Restored Lender”), then the Swingline Exposure and LC Exposure of the Revolving Lenders shall be reallocated in accordance with their Applicable Percentages and on such date such Restored Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Restored Lender to hold such Loans in accordance with its Applicable Percentage (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph, the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated including the Revolving Commitment of such Restored Lender but disregarding the Revolving Commitments of the Defaulting Lenders at such time).
Appears in 2 contracts
Sources: Credit Agreement (Life Time Fitness, Inc.), Credit Agreement (Life Time Fitness, Inc.)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unused amount of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a);
(b) the Revolving Commitment and Revolving Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided that any amendment, waiver or other modification requiring the consent of all Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereof;
(ci) if any Swingline Exposure or LC Exposure exists at the time such Revolving a Lender becomes is a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the Non-Defaulting Lenders in accordance with their respective Applicable Percentages (with the term “Applicable Percentage” meaningLender, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph (c), the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated disregarding the Revolving Commitments of the Defaulting Lenders at such time) but only to the extent that the sum of all Non-Defaulting Lenders’ Revolving Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the sum of all Non-Defaulting Lenders’ Revolving Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, then the Borrower shall within one Business Day following notice by the Administrative Agent (A) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (B) second, cash collateralize for the benefit of the Issuing Banks the portion of such Defaulting Lender’s LC Exposure that has not been reallocated in accordance with the procedures set forth in Section 2.05(i2.08(j) for so long as such LC Exposure is outstanding;
(iiiii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower shall not be required to pay participation fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such Defaulting Lender is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(b) shall be adjusted to give effect to such reallocation; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor not cash collateralized pursuant to clause (i) or (iias required in Section 2.08(k)(i) above, then, without prejudice to any other rights or remedies of any the Issuing Bank or any other Lender hereunder, all participation letter of credit fees payable under Section 2.12(b3.05(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) Bank until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and;
(diii) so long as such Revolving any Lender is a Defaulting Lender, the Swingline Lender Issuing Bank shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew amend or extend increase any Letter of Credit, unless in each case it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure or LC Exposure, as applicable, cash collateral will be fully covered by the Revolving Commitments of the Non-Defaulting Lenders and/or cash collateral provided by the Borrower in accordance with Section 2.20(c), and participating interests in any such funded Swingline Loan or in any such issued, amended, reviewed or extended Letter 2.08(k)(i) above; and
(iv) for the avoidance of Credit will be allocated among the Non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein). In the event that (x) a Bankruptcy Event with respect to a Revolving Lender Parent shall have occurred following the date hereof and for so long as such Bankruptcy Event shall continue or (y) the Swingline Lender or any Issuing Bank has a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend creditdoubt, the Swingline Lender Borrower shall not be required to fund any Swingline Loan, retain and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless the Swingline Lender or such Issuing Bank, as the case may be, shall have entered into arrangements with the Borrower or such Revolving Lender satisfactory to the Swingline Lender or such Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the Borrower, the Swingline Lender reserve its other rights and remedies respecting each Issuing Bank each agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender (a “Restored Lender”), then the Swingline Exposure and LC Exposure of the Revolving Lenders shall be reallocated in accordance with their Applicable Percentages and on such date such Restored Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Restored Lender to hold such Loans in accordance with its Applicable Percentage (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph, the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated including the Revolving Commitment of such Restored Lender but disregarding the Revolving Commitments of the Defaulting Lenders at such time).
Appears in 2 contracts
Sources: Credit Agreement, Credit Agreement (Bill Barrett Corp)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unused amount unfunded portion of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a)2.21;
(b) the Revolving Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 9.029.10); , provided that any amendmentwaiver, waiver amendment or other modification requiring the consent of all Lenders or all each affected Lender which affects such Defaulting Lender differently than other affected Lenders affected thereby shall, except as otherwise provided in Section 9.02, shall require the consent of such Defaulting Lender in accordance with the terms hereofLender;
(c) if any Swingline Exposure or LC Exposure exists at the time such Revolving a Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and such LC Exposure which pertains to the U.S. Letter of such Defaulting Lender Credit Outstandings shall be reallocated among the Nonnon-Defaulting Lenders having U.S. Revolving Commitments in accordance with their respective Applicable Percentages (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph (c), the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated disregarding the Revolving Commitments of the Defaulting Lenders at such time) but only to the extent that (x) the sum of all Nonnon-Defaulting Lenders’ U.S. Revolving Exposures Loans plus such Defaulting Lender’s Swingline Exposure and LC Exposure in respect of U.S. Letter of Credit Outstandings does not exceed the sum total of all Nonnon-Defaulting Lenders’ U.S. Revolving CommitmentsCommitments and (y) the conditions set forth in Section 4.2 are satisfied at such time;
(ii) all or any part of such LC Exposure which pertains to the Canadian Letter of Credit Outstandings shall be reallocated among the non-Defaulting Lenders having Canadian Revolving Commitments in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Canadian Revolving Loans plus such Defaulting Lender’s LC Exposure in respect of Canadian Letter of Credit Outstandings does not exceed the total of all non-Defaulting Lenders’ Canadian Revolving Commitments and (y) the conditions set forth in Section 4.2 are satisfied at such time
(iii) if the reallocation described in clause clauses (i) or (ii) above cannot, or can only partially, be effected, neither the Borrower Fronting Banks nor any Lender shall within one Business Day following notice by have any obligation to issue new Letters of Credit under this Agreement unless the Administrative Agent (A) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (B) second, Borrowers shall have cash collateralize for the benefit of the Issuing Banks the portion of collateralized such Defaulting Lender’s LC Exposure that has not been reallocated (after giving effect to any partial reallocation pursuant to clauses (i) and (ii) above) in accordance with the procedures set forth in Section 2.05(i2.4(c) for so long as such LC Exposure is outstanding;
(iiiiv) if the Borrower Borrowers cash collateralizes collateralize any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) aboveSection 2.33(c), the Borrower Borrowers shall not be required to pay participation any fees to such Defaulting Lender pursuant to Section 2.12(b) 2.21 with respect to such portion of such Defaulting Lender’s LC Exposure for so long as during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(ivv) if any portion of the LC Exposure of such the non-Defaulting Lender Lenders is reallocated pursuant to clause (i) aboveSection 2.33(c), then the fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(b) Section 2.21 shall be adjusted to give effect to in accordance with such reallocationnon-Defaulting Lenders’ Applicable Percentages; andor
(vvi) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized nor reallocated pursuant to clause (i) or (ii) aboveSection 2.33(c), then, without prejudice to any rights or remedies of any Issuing Fronting Bank or any other Lender hereunder, all participation letter of credit fees payable under Section 2.12(b) 2.22 with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) Fronting Bank until and to the extent that such LC Exposure is reallocated and/or cash collateralized; andcollateralized or reallocated;
(d) so long as such Revolving any Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Fronting Bank shall be required to issue, amend, renew amend or extend increase any Letter of Credit, unless in each case it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure or LC Exposure, as applicable, will be fully 100% covered by the Revolving Commitments of the Nonnon-Defaulting Lenders and/or or cash collateral will be provided by the Borrower Borrowers in accordance with Section 2.20(c2.33(c), and participating interests in any such funded Swingline Loan newly issued or in any such issued, amended, reviewed or extended increased Letter of Credit will shall be allocated among the Nonnon-Defaulting Lenders in a manner consistent with Section 2.20(c)(i2.33(c)(i) (and such Defaulting Lender Lenders shall not participate therein). In ; and
(e) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.26 but excluding Section 2.32(b)) shall, in lieu of being distributed to such Defaulting Lender, be retained by the event that Applicable 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 Applicable Agent (xi) first, to the payment of any amounts owing by such Defaulting Lender to the Applicable Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to any Fronting Bank hereunder, (iii) third, if so determined by the Applicable Agent or requested by a Bankruptcy Event with respect Fronting Bank, to a Revolving be held in such account as cash collateral for future funding obligations of the Defaulting Lender Parent shall have occurred following the date hereof and for so long as such Bankruptcy Event shall continue or (y) the Swingline Lender or of any Issuing Bank has a good faith belief that any Revolving Lender has defaulted participating interest in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan, and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless (iv) fourth, to the Swingline funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Applicable Agent, (v) fifth, if so determined by the Applicable Agent and the Borrowers, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders or a Fronting Bank as a result of any judgment of a court of competent jurisdiction obtained by any Lender or such Issuing BankFronting Bank against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, as the case may be(vii) seventh, shall have entered into arrangements with the Borrower or such Revolving Lender satisfactory to the Swingline payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, and (viii) eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such Issuing Bank, as payment is (x) a prepayment of the case may be, to defease principal amount of any risk to it Loans or reimbursement obligations in respect of Letter of Credit disbursements for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 4.2 are satisfied, such Lender hereunderpayment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Lender. In the event that the Administrative Applicable Agent, the Borrower, the Swingline Lender Borrowers and each Issuing Fronting Bank each agree agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender (a “Restored Lender”), then the Swingline Exposure and LC Exposure of the Revolving Lenders shall be reallocated in accordance with their Applicable Percentages readjusted to reflect the inclusion of such Lender’s Revolving Commitment and on such date such Restored Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Applicable Agent shall determine may be necessary in order for such Restored Lender to hold such Loans in accordance with its Applicable Percentage (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph, the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated including the Revolving Commitment of such Restored Lender but disregarding the Revolving Commitments of the Defaulting Lenders at such time).
Appears in 2 contracts
Sources: Credit Agreement (Smurfit Stone Container Corp), Credit Agreement (Smurfit Stone Container Corp)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unused amount of the Revolving Credit Commitment of such Defaulting Lender pursuant to Section 2.12(a2.04(a);
(b) the Revolving Credit Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Majority Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.028.01); provided, that, except as otherwise provided that any in Section 8.01, this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of all Lenders such Lender or all Lenders each Lender directly affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereofthereby;
(c) if any Swingline Exposure or LC Letter of Credit Exposure exists at the time such Revolving Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Letter of Credit Exposure of such Defaulting Lender shall be reallocated among the Nonnon-Defaulting Lenders in accordance with their respective Applicable Percentages (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph (c), the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated disregarding the Revolving Commitments of the Defaulting Lenders at such time) Ratable Shares but only to the extent that the sum of all Nonnon-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Letter of Credit Exposure does not exceed the sum total of all Nonnon-Defaulting Lenders’ Revolving Credit Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one (1) Business Day following notice by the Administrative Agent (A) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (B) second, cash collateralize for the benefit of the relevant Issuing Banks Bank only the portion of Borrower’s obligations corresponding to such Defaulting Lender’s LC Letter of Credit Exposure that has not been reallocated (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.05(i) 6.02 for so long as such LC Letter of Credit Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Letter of Credit Exposure pursuant to clause (ii) above, the Borrower shall not be required to pay participation any fees to such Defaulting Lender pursuant to Section 2.12(b2.04(b) with respect to such portion Defaulting Lender’s Letter of Credit Exposure during the period such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC Letter of Credit Exposure is cash collateralized;
(iv) if any portion the Letter of Credit Exposure of the LC Exposure of such non-Defaulting Lender Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(bSection 2.04(b) shall be adjusted to give effect to in accordance with such reallocationnon-Defaulting Lenders’ Ratable Shares; and
(v) if all or any portion of such Defaulting Lender’s LC Letter of Credit Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all participation facility fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Revolving Credit Commitment that was utilized by such Letter of Credit Exposure) and letter of credit fees payable under Section 2.12(b2.04(b) with respect to such Defaulting Lender’s LC Letter of Credit Exposure shall be payable to the relevant Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) Bank until and to the extent that such LC Letter of Credit Exposure is reallocated and/or cash collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lender Issuing Banks shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew amend or extend increase any Letter of Credit, unless in each case it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Letter of Credit Exposure or LC Exposure, as applicable, will be fully 100% covered by the Revolving Credit Commitments of the Nonnon-Defaulting Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 2.20(c), and participating interests in any such funded Swingline Loan newly issued or in any such issued, amended, reviewed or extended increased Letter of Credit will shall be allocated among the Nonnon-Defaulting Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein). In the event that If (xi) a Bankruptcy Event with respect to a Revolving Parent of any Lender Parent shall have occurred occur following the date hereof and for so long as such Bankruptcy Event event shall continue or (yii) the Swingline Lender or any Issuing Bank has Banks have a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender Issuing Banks shall not be required to fund any Swingline Loan, and no Issuing Bank shall be required to issue, amend, renew amend or extend increase any Letter of Credit, unless the Swingline Lender or such Issuing Bank, as the case may be, Banks shall have entered into arrangements with the Borrower or such Revolving Lender Lender, satisfactory to the Swingline Lender or such Issuing BankBanks, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the Borrower, Borrower and the Swingline Lender and Issuing Banks each Issuing Bank each agree agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender (a “Restored Lender”), then the Swingline Exposure and LC Letter of Credit Exposure of the Revolving Lenders shall be reallocated in accordance with their Applicable Percentages readjusted to reflect the inclusion of such Lender’s Revolving Credit Commitment and on such date such Restored Lender shall purchase at par such of the Revolving Loans Advances of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Restored Lender to hold such Loans Advances in accordance with its Applicable Percentage (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph, the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated including the Revolving Commitment of such Restored Lender but disregarding the Revolving Commitments of the Defaulting Lenders at such time)Ratable Share.
Appears in 2 contracts
Sources: Credit Agreement (Coca Cola Bottling Co Consolidated /De/), Credit Agreement (Coca Cola Bottling Co Consolidated /De/)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unused amount of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a);
(b) the Revolving Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.0211.02); provided provided, that any this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of all Lenders such Lender or all Lenders each Lender affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereofthereby;
(c) if any Swingline Exposure or LC Exposure exists at the time such Revolving Lender becomes a Defaulting Lender then:
(i) so long as no Default shall be continuing, all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the Nonnon-Defaulting Lenders in accordance with their respective Applicable Percentages (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph (c), the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated disregarding the Revolving Commitments of the Defaulting Lenders at such time) but only to the extent that the sum of all Nonnon-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline LC Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments and to the extent the sum of each non-Defaulting Lender’s Revolving Credit Exposure and LC Exposure does not exceed the sum of all Nonsuch non-Defaulting Lenders’ Revolving CommitmentsLender’s Commitment;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one (1) Business Day following notice by the Administrative Agent (A) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (B) second, cash collateralize for the benefit of the Issuing Banks applicable LC Bank only the portion of Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure that has not been reallocated (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in the last paragraph of Section 2.05(i) 8.01 for so long as such LC Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower shall not be required to pay participation any fees to such Defaulting Lender pursuant to Section 2.12(b) or the applicable LC Bank pursuant to Section 2.12(b)(x) (solely with respect to such portion of any fronting fee), in each case with respect to such Defaulting Lender’s LC Exposure for so long as during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such the non-Defaulting Lender Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and Section 2.12(b) shall be adjusted to give effect to in accordance with such reallocation; andnon-Defaulting Lenders’ Applicable Percentages;
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing LC Bank or any other Lender hereunder, all participation Facility Fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s applicable LC Exposure attributable to Letters of Credit issued by each Issuing Bank) Bank until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and no Issuing LC Bank shall be required to issue, amend, renew amend or extend increase any Letter of Credit, unless in each case it is reasonably satisfied that (i) the related exposure and the Defaulting Lender’s then outstanding Swingline LC Exposure or LC Exposure, as applicable, will be fully 100% covered by the Revolving Commitments of the Nonnon-Defaulting Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 2.20(c), and (ii) participating interests in any such funded Swingline Loan newly issued or in any such issued, amended, reviewed or extended increased Letter of Credit will shall be allocated among the Nonnon-Defaulting Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein). In the event that If (xi) a Bankruptcy Event or a Bail-In Action with respect to a Revolving Parent of any Lender Parent shall have occurred occur following the date hereof and for so long as such Bankruptcy Event event shall continue or (yii) the Swingline Lender or any Issuing LC Bank has a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan, and no Issuing LC Bank shall be required to issue, amend, renew amend or extend increase any Letter of Credit, unless the Swingline Lender or such Issuing Bank, as the case may be, applicable LC Bank shall have entered into arrangements with the Borrower or such Revolving Lender Lender, satisfactory to the Swingline Lender or such Issuing Bank, as the case may be, applicable LC Bank to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the Borrower, Borrower and the Swingline Lender and ▇▇ ▇▇▇▇▇ each Issuing Bank each agree agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender (a “Restored Lender”), then the Swingline Exposure and LC Exposure of the Revolving Lenders shall be reallocated in accordance with their Applicable Percentages readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Restored Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Restored Lender to hold such Loans in accordance with its Applicable Percentage (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph, the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated including the Revolving Commitment of such Restored Lender but disregarding the Revolving Commitments of the Defaulting Lenders at such time).
Appears in 2 contracts
Sources: Revolving Credit Agreement (Nisource Inc/De), Revolving Credit Agreement (Nisource Inc/De)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on such Lender’s Percentage of the unused amount portion of the applicable Revolving Loan Commitment of such Defaulting Lender Amount pursuant to Section 2.12(a)3.3.1;
(b) the Revolving Loan Commitment and Revolving Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.0211.1); provided that any amendment, waiver or other modification requiring the consent of all Lenders, all Revolving Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 9.02, each applicable Lender shall require the consent of such Defaulting Lender in accordance with the terms hereof;
(c) if any Swingline Exposure Swing Line Loans or LC Exposure exists Letter of Credit Outstandings exist at the time such Revolving Lender becomes a Defaulting Lender then:
(i) all or such Lender’s Percentage of any part of the Swingline Exposure and LC Exposure of Swing Line Loans (other than any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.3.2(c)) and Letter of Credit Outstandings (other than any portion thereof attributable to unreimbursed Reimbursement Obligations with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.6.1) shall be reallocated among the applicable Non-Defaulting Lenders in accordance with their respective Applicable applicable Percentages (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph (c), the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated disregarding the Revolving Commitments of the Defaulting Lenders at such time) but only to the extent that the sum of all such Non-Defaulting Lenders’ applicable Revolving Exposures Loans and Percentages of Swing Line Loans and Letter of Credit Outstandings plus such Defaulting Lender’s Swingline Exposure Percentage of Swing Line Loans and LC Exposure Letter of Credit Outstandings does not exceed the sum of all such Non-Defaulting Lenders’ Revolving Loan Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent (A) first, prepay the portion of such Defaulting Lender’s Swingline Exposure Percentage of Swing Line Loans that has not been reallocated and (B) second, cash collateralize for the benefit of the Issuing Banks Issuer the portion of such Defaulting Lender’s LC Exposure Percentage of Letter of Credit Outstandings that has not been so reallocated in accordance with the procedures set forth in Section 2.05(i) 2.6.4 for so long as such LC Exposure is Letter of Credit Outstandings are outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure Percentage of Letter of Credit Outstandings pursuant to clause (ii) above, the Borrower shall not be required to pay participation Letter of Credit fees to such Defaulting Lender pursuant to Section 2.12(b) 3.3.3 with respect to such portion of such Defaulting Lender’s LC Exposure Percentage of Letter of Credit Outstandings for so long as such Defaulting Lender’s LC Exposure Percentage of Letter of Credit Outstandings is cash collateralized;
(iv) if any portion of the LC Exposure of such Defaulting Lender Lender’s Percentage of Letter of Credit Outstandings is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) 3.3.1 and 2.12(b) 3.3.3 shall be adjusted to give effect to such reallocation; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure Percentage of Letter of Credit Outstandings is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank Issuer or any other Lender hereunder, all participation Letter of Credit fees payable under Section 2.12(b) 3.3.3 with respect to any uncovered portion of such Defaulting Lender’s LC Exposure Percentage of Letter of Credit Outstandings shall be payable to the Issuing Banks Issuers (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure Percentage of Letter of Credit Outstandings attributable to Letters of Credit issued by each Issuing BankIssuer) until and to the extent that such LC Exposure Defaulting Lender’s Percentage of Letter of Credit Outstandings is reallocated and/or cash collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender, the Swingline Swing Line Lender shall not be required to fund any Swingline Swing Line Loan and no Issuing Bank Issuer shall be required to issue, amend, renew or extend any Letter of Credit, unless unless, in each case case, it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure Percentage of Swing Line Loans or LC ExposureLetter of Credit Outstandings, as applicable, will be fully covered by the Revolving Loan Commitments of the applicable Non-Defaulting Lenders and/or cash collateral provided by the Borrower in accordance with Section 2.20(c4.12(c), and participating interests in any such funded Swingline Swing Line Loan or in any such issued, amended, reviewed renewed or extended Letter of Credit will be allocated among the applicable Non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i4.12(c)(i) (and such Defaulting Lender shall not participate therein). .
(e) In the event that (xi) a Bankruptcy Event with respect to any Person in respect of which a Revolving Lender Parent is a Subsidiary shall have occurred following the date hereof and for so long as such Bankruptcy Event shall continue or (yii) the Swingline Swing Line Lender or any Issuing Bank Issuer has a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Swing Line Lender shall not be required to fund any Swingline Swing Line Loan, and no Issuing Bank such Issuer shall not be required to issue, amend, renew or extend any Letter of Credit, unless the Swingline Swing Line Lender or such Issuing BankIssuer, as the case may be, shall have entered into arrangements with the Borrower or such the applicable Revolving Lender satisfactory to the Swingline Swing Line Lender or such Issuing BankIssuer, as the case may be, to defease any risk to it in respect of such Lender hereunder. .
(f) In the event that the Administrative Agent, the Borrower, the Swingline Swing Line Lender and each Issuing Bank Issuer each agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender (a “Restored Lender”), then the Swingline Exposure applicable Revolving Lenders’ Percentages of Swing Line Loans and LC Exposure Letter of the Revolving Lenders Credit Outstandings shall be reallocated in accordance with their Applicable Percentages readjusted to reflect the inclusion of such Lender’s Revolving Loan Commitment and on such date such Restored Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Restored Revolving Lender to hold such Loans in accordance with its Applicable Percentage (with the term “Applicable applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph, the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated including the Revolving Commitment of such Restored Lender but disregarding the Revolving Commitments of the Defaulting Lenders at such time).
Appears in 2 contracts
Sources: Amendment Agreement (Weight Watchers International Inc), Credit Agreement (Weight Watchers International Inc)
Defaulting Lenders. 13.16.1 Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment 13.16.1.1 the standby fees payable pursuant to Section 6.5 shall cease to accrue on the unused amount portion of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a)Lender;
(b) the Revolving Commitment and Revolving Exposure of 13.16.1.2 such Defaulting Lender shall not be included in determining whether whether, and the Commitment and the Rateable Portion of the aggregate principal amount of such Defaulting Lender under the Credit Facilities shall not be included in determining whether, all Lenders or the Required Lenders or any other requisite Lenders Lenders, have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 9.0213.9); , provided that any amendmentwaiver, waiver amendment or other modification requiring the consent of all Lenders or all that affects such Defaulting Lender differently than other Lenders affected thereby shall, except as otherwise provided in Section 9.02, shall require the consent of such Defaulting Lender in accordance with the terms hereofLender;
(c) if any Swingline Exposure or LC Exposure exists at 13.16.1.3 the time such Revolving Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of Administrative Agent may require such Defaulting Lender shall be reallocated among the Non-Defaulting Lenders in accordance with their respective Applicable Percentages (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations pay to be made pursuant to this paragraph (c), the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated disregarding the Revolving Commitments of the Defaulting Lenders at such time) but only to the extent that the sum of all Non-Defaulting Lenders’ Revolving Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the sum of all Non-Defaulting Lenders’ Revolving Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent (A) first, prepay for deposit into an escrow account maintained by and in the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (B) second, cash collateralize for the benefit name of the Issuing Banks the portion of such Defaulting Lender’s LC Exposure that has not been reallocated in accordance with the procedures set forth in Section 2.05(i) for so long as such LC Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower shall not be required to pay participation fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such Defaulting Lender is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(b) shall be adjusted to give effect to such reallocation; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all participation fees payable under Section 2.12(b) with respect Administrative Agent an amount equal to such Defaulting Lender’s LC Exposure shall be payable maximum contingent obligations hereunder to the Administrative Agent and the Issuing Banks (and allocated among them ratably based on Lender; and
13.16.1.4 the amount of Administrative Agent may withhold any payments owing to such Defaulting Lender for set-off against such Defaulting Lender’s LC Exposure attributable to Letters existing or reasonably foreseeable future obligations hereunder. For the avoidance of Credit issued by doubt, the Borrower shall retain and reserve its other rights and remedies under Applicable Law respecting each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless in each case it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure or LC Exposure, as applicable, will be fully covered by the Revolving Commitments of the Non-Defaulting Lenders and/or cash collateral provided by the Borrower in accordance with Section 2.20(c), and participating interests in any such funded Swingline Loan or in any such issued, amended, reviewed or extended Letter of Credit will be allocated among the Non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein). In the event that (x) a Bankruptcy Event with respect to a Revolving Lender Parent shall have occurred following the date hereof and for so long as such Bankruptcy Event shall continue or (y) the Swingline Lender or any Issuing Bank has a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan, and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless the Swingline Lender or such Issuing Bank, as the case may be, shall have entered into arrangements with the Borrower or such Revolving Lender satisfactory to the Swingline Lender or such Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the Borrower, the Swingline Lender and each Issuing Bank each agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender (a “Restored Lender”), then the Swingline Exposure and LC Exposure of the Revolving Lenders shall be reallocated in accordance with their Applicable Percentages and on such date such Restored Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Restored Lender to hold such Loans in accordance with its Applicable Percentage (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph, the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated including the Revolving Commitment of such Restored Lender but disregarding the Revolving Commitments of the Defaulting Lenders at such time).
Appears in 2 contracts
Sources: Credit Agreement (Mohegan Tribal Gaming Authority), Credit Agreement (Mohegan Tribal Gaming Authority)
Defaulting Lenders. Notwithstanding (a) No Commitment of any provision Lender shall be increased or otherwise affected, and, except as otherwise expressly provided in this Section 4.3 or otherwise specifically provided herein, performance by the Borrower of its obligations shall not be excused or otherwise modified as a result of the operation of this Agreement Section 4.3. The rights and remedies against a Defaulting Lender under this Section 4.3 are in addition to any other rights and remedies which the contraryBorrower, if the Agent or any Revolving Lender becomes may have against such Defaulting Lender.
(b) If the Borrower and the Agent agree in writing in their reasonable determination that a Defaulting Lender should no longer be deemed to be a Defaulting Lender, then the following provisions shall apply for Agent will so long notify the parties hereto, whereupon as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unused amount of the Revolving Commitment effective date specified in such notice and subject to any conditions set forth therein, that Lender will, to the extent applicable, purchase at par that portion of such Defaulting Lender pursuant to Section 2.12(a);
(b) outstanding Commitments of the Revolving Commitment and Revolving Exposure of such Defaulting Lender shall not be included in determining whether the Required other Lenders or any take such other requisite Lenders have taken or actions as the Agent may take any action hereunder or under any other Loan Document (including any consent determine to any amendment, waiver or other modification pursuant be necessary to Section 9.02); provided that any amendment, waiver or other modification requiring cause the consent of all Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 9.02, require Commitments to be held on a pro rata basis by the consent of such Defaulting Lender in accordance with the terms hereof;
(c) if any Swingline Exposure or LC Exposure exists at the time such Revolving Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the Non-Defaulting Lenders in accordance with their respective Applicable Percentages (Percentages, whereupon such Lender will cease to be a Defaulting Lender; provided, that, no adjustments will be made retroactively or with the term “Applicable Percentage” meaning, duplication with respect to any Lender for purposes of reallocations to be fees accrued or payments made pursuant to this paragraph (c), the percentage by or on behalf of the Aggregate Revolving Commitment represented Borrower while that Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from such Lender’s Revolving Commitment having been a Defaulting Lender.
(c) Notwithstanding anything to the contrary contained in this Agreement, any payment of principal, interest, commitment fees or other amounts received by the Agent for the account of any Defaulting Lender under this Agreement (whether voluntary or mandatory, at maturity or otherwise) shall be applied at such time or times as may be determined by the time Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Agent hereunder; second, as the Borrower may request (so long as no Event of Default shall have occurred and be continuing), to the funding of any Committed Loan in respect of which that Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Agent; third, to the payment of any amounts owing to the Lenders as a result of any judgment of a court of competent jurisdiction obtained by any Lender against such Defaulting Lender as a result of such reallocation calculated disregarding Defaulting Lender’s breach of its obligations under this Agreement; fourth, so long as no Event of Default shall have occurred and be continuing, to the Revolving Commitments payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and fifth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided, that, if (x) such payment is a payment of the principal amount of any Committed Loan in respect of which such Defaulting Lenders Lender has not fully funded its appropriate share, and (y) such Committed Loans were made at a time when the applicable conditions set forth in Section 9 were satisfied or waived, such time) but only payment shall be applied solely to pay the extent that the sum Committed Loans of all Non-Defaulting Lenders’ Revolving Exposures plus Lenders on a pro rata basis prior to being applied to the payment of any Committed Loans of such Defaulting Lender’s Swingline Exposure Lender and LC Exposure does not exceed provided, further, that any amounts held as cash collateral for funding obligations of a Defaulting Lender shall be returned to such Defaulting Lender upon the sum termination of all Non-Defaulting Lenders’ Revolving Commitments;
(ii) if this Agreement and the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent (A) first, prepay the portion satisfaction of such Defaulting Lender’s Swingline Exposure obligations hereunder. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that has not been reallocated are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 4.3 shall be deemed paid to and (B) second, cash collateralize for the benefit of the Issuing Banks the portion of redirected by such Defaulting Lender’s LC Exposure that has not been reallocated in accordance with the procedures set forth in Section 2.05(i) for so long as such LC Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower shall not be required to pay participation fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such Defaulting Lender is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(b) shall be adjusted to give effect to such reallocation; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all participation fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless in each case it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure or LC Exposure, as applicable, will be fully covered by the Revolving Commitments of the Non-Defaulting Lenders and/or cash collateral provided by the Borrower in accordance with Section 2.20(c), and participating interests in any such funded Swingline Loan or in any such issued, amended, reviewed or extended Letter of Credit will be allocated among the Non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting each Lender shall not participate therein). In the event that (x) a Bankruptcy Event with respect to a Revolving Lender Parent shall have occurred following the date hereof and for so long as such Bankruptcy Event shall continue or (y) the Swingline Lender or any Issuing Bank has a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan, and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless the Swingline Lender or such Issuing Bank, as the case may be, shall have entered into arrangements with the Borrower or such Revolving Lender satisfactory to the Swingline Lender or such Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the Borrower, the Swingline Lender and each Issuing Bank each agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender (a “Restored Lender”), then the Swingline Exposure and LC Exposure of the Revolving Lenders shall be reallocated in accordance with their Applicable Percentages and on such date such Restored Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Restored Lender to hold such Loans in accordance with its Applicable Percentage (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph, the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated including the Revolving Commitment of such Restored Lender but disregarding the Revolving Commitments of the Defaulting Lenders at such time)irrevocably consents hereto.
Appears in 2 contracts
Sources: Revolving Credit Agreement, Revolving Credit Agreement (AerCap Holdings N.V.)
Defaulting Lenders. Notwithstanding If any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender, to the extent permitted by applicable law:
(a) commitment fees Ticking Fees shall cease to accrue on the unused amount portion of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a2.10(a);
(b) the Revolving Commitment and Revolving Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification permitted to be effected by the Required Lenders pursuant to Section 9.02); provided that any amendment, waiver or other modification requiring the consent of all Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereof;
(c) if any Swingline Exposure or LC Exposure exists at the time such Revolving Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the Non-Defaulting Lenders in accordance with their respective Applicable Percentages (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph (c8.02), the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated disregarding the Revolving Commitments of the Defaulting Lenders at such time) but only to the extent that the sum of all Non-Defaulting Lenders’ Revolving Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the sum of all Non-Defaulting Lenders’ Revolving Commitments;
(ii) if the reallocation described in clause (i) above cannotand, or can only partiallynotwithstanding Section 8.02, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent (A) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (B) second, cash collateralize for the benefit of the Issuing Banks the portion of such Defaulting Lender’s LC Exposure that has not been reallocated in accordance with the procedures set forth in Section 2.05(i) for so long as such LC Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower shall not be required to pay participation fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such Defaulting Lender is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(b) shall be adjusted to give effect to such reallocation; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all participation fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless in each case it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure or LC Exposure, as applicable, will be fully covered by the Revolving Commitments of the Non-Defaulting Lenders and/or cash collateral provided by the Borrower in accordance with Section 2.20(c), and participating interests in any such funded Swingline Loan or in any such issued, amended, reviewed or extended Letter of Credit will be allocated among the Non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein). In have the event that (x) a Bankruptcy Event with respect right to a Revolving Lender Parent shall have occurred following vote on or consent to any amendment or waiver under this Agreement if such amendment or waiver does not disproportionately in an adverse manner affect the date hereof and for so long as rights of such Bankruptcy Event shall continue or (y) the Swingline Defaulting Lender or any Issuing Bank has a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which increase such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan, and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless the Swingline Lender or such Issuing Bank, as the case may be, shall have entered into arrangements with the Borrower or such Revolving Lender satisfactory to the Swingline Lender or such Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender Defaulting Lender’s Commitment hereunder. ; In the event that the Administrative Agent, Agent and the Borrower, the Swingline Lender and each Issuing Bank each Borrower agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender (a “Restored Lender”), then the Swingline Exposure and LC Exposure of the Revolving Lenders shall be reallocated in accordance with their Applicable Percentages and on such date such Restored Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be is necessary in order for such Restored Lender to hold such Loans in accordance with its Applicable Percentage Percentage.
(with c) Any payment of principal, interest, fees or other amounts received by the term “Applicable Percentage” meaningAdministrative Agent for the account of a Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article 6 or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 8.08 shall, unless the Administrative Agent determines that such application entails a material risk of violation of applicable law or order, be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, as the Borrower may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; third, if so determined by the Administrative Agent and the Borrower, to be held in a deposit account and released pro rata in order to satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement; fourth, so long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender for purposes as a result of reallocations such Defaulting Lender’s breach of its obligations under this Agreement; and fifth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made at a time when the conditions set forth in Section 3.02 were satisfied or waived, such payment shall be made applied solely to pay the Loans of all non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of such Defaulting Lender until such time as all Credit Exposure of each Lender is held in accordance with such Lender’s Commitment. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender pursuant to this paragraph, the percentage of the Aggregate Revolving Commitment represented Section 2.18(c) shall be deemed paid to and redirected by such Defaulting Lender’s Revolving Commitment at the time of such reallocation calculated including the Revolving Commitment of such Restored , and each Lender but disregarding the Revolving Commitments of the Defaulting Lenders at such time)irrevocably consents hereto.
Appears in 2 contracts
Sources: Term Loan Credit Agreement (Applied Materials Inc /De), Term Loan Credit Agreement (Applied Materials Inc /De)
Defaulting Lenders. (a) Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lenderapply:
(ai) commitment fees Facility Fees shall cease to accrue on the unused amount of the Revolving Commitment portion of such Defaulting Lender pursuant to Section 2.12(a);Lender’s Commitment.
(bii) the Revolving The Commitment and Revolving Outstanding Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 9.028.2); provided that any amendmentwaiver, waiver amendment or other modification requiring the consent of all Lenders or all Lenders each affected thereby shall, except as otherwise provided in Section 9.02, Lender shall require the consent of such Defaulting Lender (in accordance with such case, to the terms hereof;extent such Defaulting Lender is an affected Lender).
(ciii) if any Swingline Exposure Unless a Default or LC Exposure exists at the time such Revolving Lender becomes a Defaulting Lender then:
(i) an Unmatured Default shall have occurred and be continuing, all or any part of the Swingline Exposure and such Defaulting Lender’s LC Exposure of such Defaulting Lender shall be reallocated among the Nonnon-Defaulting Lenders in accordance with their respective Applicable Percentages (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph (c), the percentage Pro Rata Shares of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated disregarding the Revolving Commitments of the Defaulting Lenders at such time) Commitment, but only to the extent that the sum of all Nonnon-Defaulting Lenders’ Revolving Outstanding Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the sum total of all Nonnon-Defaulting Lenders’ Revolving Commitments;.
(iiiv) if If the LC Exposure of such Defaulting Lender is reallocated pursuant to clause (iii) above, then the LC Participation Fees payable to the Lenders pursuant to Section 2.6(b) shall be adjusted in accordance with such reallocation.
(v) If (or to the extent that) the reallocation described in clause (iiii) above cannot, or can only partially, be effected, the each Borrower shall shall, within one Business Day following notice by the Administrative Agent (A) first, prepay the portion of and until and for so long as such Defaulting Lender’s Swingline Exposure that has not been reallocated and (B) secondcondition shall exist), cash collateralize for the benefit of the Issuing Banks such Borrower’s obligations corresponding to the portion of such Defaulting Lender’s non-reallocated LC Exposure that has not been reallocated is attributable to Letters of Credit issued for the account of such Borrower (in each case, as determined after giving effect to any partial reallocation pursuant to clause (iii) above) in accordance with the procedures set forth in Section 2.05(i2.4(i) for so long as such unreallocated LC Exposure is outstanding;outstanding or as otherwise provided pursuant to Section 2.22(c) below.
(iiivi) if the If a Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (iiv) above, the such Borrower shall not be required to pay participation any fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such Defaulting Lender is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(b) shall be adjusted to give effect to such reallocation; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all participation fees payable under Section 2.12(b2.6(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to during the Issuing Banks (and allocated among them ratably based on the amount of period such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and.
(dvii) so long as such Revolving Lender is The Agent shall adjust the allocation of payments hereunder to ensure that a Defaulting Lender, the Swingline Lender shall does not be required to fund receive payment in respect of any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless in each case it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure or LC Exposure, as applicable, will be fully covered by the Revolving Commitments Disbursement that it did not fund or to reflect any of the Non-Defaulting Lenders and/or cash collateral provided by the Borrower actions or adjustments referred to in accordance with this Section 2.20(c), and participating interests in any such funded Swingline Loan or in any such issued, amended, reviewed or extended Letter of Credit will be allocated among the Non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i2.22.
(b) If (and such Defaulting Lender shall not participate therein). In the event that (xi) a Bankruptcy Event with respect to a Revolving the parent company of any Lender Parent shall have occurred occur following the date hereof and for so long as such Bankruptcy Event event shall continue or (yii) the Swingline Lender or any Issuing Bank has shall have a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender such Issuing Bank shall not be required to fund any Swingline Loan, and no Issuing Bank shall be required to issue, amend, renew amend or extend increase any Letter of Credit, unless the Swingline Lender or such Issuing Bank, as the case may be, Bank shall have entered into arrangements with the applicable Borrower or such Revolving Lender reasonably satisfactory to the Swingline Lender or such Issuing Bank, as Bank to mitigate the case may be, to defease any risk to it in respect of such Lender hereunder. failing to satisfy its participating interest therein.
(c) In the event that the Administrative Agent, the Borrower, the Swingline Lender each Borrower and each Issuing Bank each shall agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender (a “Restored Lender”), then the Swingline Exposure and LC Exposure of the Revolving Lenders shall be reallocated in accordance with their Applicable Percentages readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Restored Lender shall purchase at par such of the Revolving Loans and participations in LC Disbursements of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Restored Lender to hold such Loans in accordance with its Applicable Percentage (Pro Rata Share, and all cash collateral then being held pursuant to Section 2.22(a)(v) above in connection with the term “Applicable Percentage” meaningLC Exposure of such Defaulting Lender shall be released and returned to the applicable Borrower.
(d) Except as expressly provided in this Section 2.22 in connection with the obligations of the Issuing Banks, with the obligation of each Lender and Issuing Bank to fund the full amount of its Commitment and to make Loans, Advances and other extensions of credit hereunder shall not be released or diminished in any respect by any other Lender becoming a Defaulting Lender.
(e) None of the foregoing provisions of this Section 2.22 shall be deemed to effect, diminish or release any rights, claims or causes of action the Borrowers may have against any Lender for purposes of reallocations to be made pursuant to this paragraph, the percentage of the Aggregate Revolving Commitment represented by such that becomes a Defaulting Lender’s Revolving Commitment at the time of such reallocation calculated including the Revolving Commitment of such Restored Lender but disregarding the Revolving Commitments of the Defaulting Lenders at such time).
Appears in 2 contracts
Sources: Credit Agreement (Ameren Illinois Co), Credit Agreement (Ameren Illinois Co)
Defaulting Lenders. Notwithstanding (a) No Revolving Credit Commitment of any provision Lender shall be increased or otherwise affected, and, except as otherwise expressly provided in this Section 2.22, performance by the Borrowers of their obligations shall not be excused or otherwise modified as a result of the operation of this Agreement Section 2.22. The rights and remedies against a Defaulting Lender under this Section 2.22 are in addition to any other rights and remedies which the contraryBorrowers, if the Agent or any Revolving Lender becomes may have against such Defaulting Lender.
(b) If the Borrowers and the Agent agree in writing in their reasonable determination that a Defaulting Lender should no longer be deemed to be a Defaulting Lender, then the following provisions shall apply for Agent will so long notify the parties hereto, whereupon as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unused amount of the effective date specified in such notice and subject to any conditions set forth therein, that Lender will, to the extent applicable, purchase that portion of outstanding Revolving Commitment Credit Advances of the other Lenders or take such Defaulting Lender pursuant other actions as the Agent may determine to Section 2.12(a);
(b) be necessary to cause the Revolving Commitment and Revolving Exposure of such Defaulting Lender shall not Credit Advances to be included in determining whether held by the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided that any amendment, waiver or other modification requiring the consent of all Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereof;
(c) if any Swingline Exposure or LC Exposure exists at the time such Revolving Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the Non-Defaulting Lenders in accordance with their respective Applicable Percentages (with the term “Applicable Percentage” meaningRatable Share, whereupon such Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of any Borrower while that Lender for purposes was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of reallocations to be made pursuant to this paragraph (c), the percentage any claim of the Aggregate Revolving Commitment represented by any party hereunder arising from such Lender’s Revolving Commitment having been a Defaulting Lender.
(c) Notwithstanding anything to the contrary contained in this Agreement, any payment of principal, interest, commitment fees or other amounts received by the Agent for the account of any Defaulting Lender under this Agreement (whether voluntary or mandatory, at maturity, pursuant to Article VI or otherwise) shall be applied at such time or times as may be determined by the time Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Agent hereunder; second, as the Borrowers may request (so long as no Default exists), to the funding of any Advance in respect of which that Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Agent; third, if so determined by the Agent and the Borrowers, to be held in a non-interest bearing deposit account and released in order to satisfy obligations of such reallocation calculated disregarding the Defaulting Lender to fund Revolving Commitments of the Defaulting Lenders at such time) but only Credit Advances under this Agreement; fourth, to the extent that payment of any amounts then owing to the sum Lenders as a result of all Non-Defaulting Lenders’ Revolving Exposures plus any judgment of a court of competent jurisdiction obtained by any Lender against such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the sum of all Non-Defaulting Lenders’ Revolving Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent (A) first, prepay the portion Lender as a result of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (B) secondbreach of its obligations under this Agreement; fifth, cash collateralize for so long as no Default exists, to the benefit payment of the Issuing Banks the portion any amounts then owing to any Borrower as a result of any judgment of a court of competent jurisdiction obtained by such Borrower against such Defaulting Lender as a result of such Defaulting Lender’s LC Exposure breach of its obligations under this Agreement; and sixth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Advance in respect of which such Defaulting Lender has not been reallocated in accordance with fully funded its appropriate share, and (y) such Advances were made at a time when the procedures applicable conditions set forth in Section 2.05(i) Article III were satisfied or waived, such payment shall be applied solely to pay the Advances of all non-Defaulting Lenders according to their Ratable Share prior to being applied to the payment of any Advances of such Defaulting Lender and provided further that any amounts held as cash collateral for so long as funding obligations of a Defaulting Lender shall be returned to such LC Exposure is outstanding;
(iii) if Defaulting Lender upon the Borrower cash collateralizes any portion termination of this Agreement and the satisfaction of such Defaulting Lender’s LC Exposure obligations hereunder. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to clause (ii) above, the Borrower this Section 2.22 shall not be required deemed paid to pay participation fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such portion of and redirected by such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC Exposure is cash collateralized;, and each Lender irrevocably consents hereto.
(ivd) if Any Borrower may terminate the Unused Revolving Credit Commitment of any portion Lender that is a Defaulting Lender upon prior notice of not less than ten Business Days to the LC Exposure Agent (which shall promptly notify the Lenders thereof), and in such event the provisions of Section 2.22(c) shall apply to all amounts thereafter paid by any Borrower for the account of such Defaulting Lender is reallocated pursuant to clause under this Agreement (whether on account of principal, interest, commitment fees or other amounts), provided that (i) aboveno 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, then the fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(b) shall be adjusted to give effect to such reallocation; and
(v) if all Agent or any portion of Lender may have against such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all participation fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless in each case it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure or LC Exposure, as applicable, will be fully covered by the Revolving Commitments of the Non-Defaulting Lenders and/or cash collateral provided by the Borrower in accordance with Section 2.20(c), and participating interests in any such funded Swingline Loan or in any such issued, amended, reviewed or extended Letter of Credit will be allocated among the Non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein). In the event that (x) a Bankruptcy Event with respect to a Revolving Lender Parent shall have occurred following the date hereof and for so long as such Bankruptcy Event shall continue or (y) the Swingline Lender or any Issuing Bank has a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan, and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless the Swingline Lender or such Issuing Bank, as the case may be, shall have entered into arrangements with the Borrower or such Revolving Lender satisfactory to the Swingline Lender or such Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the Borrower, the Swingline Lender and each Issuing Bank each agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender (a “Restored Lender”), then the Swingline Exposure and LC Exposure of the Revolving Lenders shall be reallocated in accordance with their Applicable Percentages and on such date such Restored Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Restored Lender to hold such Loans in accordance with its Applicable Percentage (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph, the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated including the Revolving Commitment of such Restored Lender but disregarding the Revolving Commitments of the Defaulting Lenders at such time).
Appears in 2 contracts
Sources: Credit Agreement (Coca-Cola Enterprises, Inc.), Credit Agreement (International CCE Inc.)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees such Defaulting Lender shall cease be entitled to accrue on receive a Facility Fee for any period during which such Lender is a Defaulting Lender only to extent allocable to the unused sum of (i) the outstanding principal amount of the Revolving Commitment of Loans funded by such Defaulting Lender pursuant to Section 2.12(a)Lender, and (ii) its L/C Exposure for which it has provided cash collateral;
(b) the Revolving Commitment and Revolving Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.0210.08); provided provided, that any this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of all Lenders such Lender or all Lenders each Lender affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereofthereby;
(c) if any Swingline Exposure or LC L/C Exposure exists at the time such Revolving Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC L/C Exposure of such Defaulting Lender shall be reallocated among the Nonnon-Defaulting Lenders in accordance with their respective Applicable Revolving Percentages (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph (c), the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated disregarding the Revolving Commitments of the Defaulting Lenders at such time) but only to the extent that (x) the sum of all Nonnon-Defaulting Lenders’ Revolving Exposures Credit Exposure plus such Defaulting Lender’s Swingline Exposure and LC L/C Exposure does not exceed the sum total of all Nonnon-Defaulting Lenders’ Commitments and (y) any Lender’s Revolving CommitmentsCredit Exposure after giving effect to such reallocation does not exceed such Lender’s Commitment;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one (1) Business Day following notice by the Administrative Agent (A) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (B) secondAgent, cash collateralize for the benefit of the Issuing Banks Lenders only the portion of Borrower’s obligations corresponding to such Defaulting Lender’s LC L/C Exposure that has not been reallocated (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.05(i) Article VIII for so long as such LC L/C Exposure is outstanding; provided that the amount so cash collateralized (or the appropriate portion thereof) shall no longer be required to be held as cash collateral, and shall be released to the Borrower, following (A) the elimination of such Defaulting Lender’s L/C Exposure with respect to the Letters of Credit or (B) the determination by the Administrative Agent and each Issuing Lender that there exists excess cash collateral;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower shall not be required to pay participation fees to such Defaulting Lender shall be entitled to receive fees pursuant to Section 2.12(b3.03(a) with respect to such portion of such Defaulting Lender’s LC L/C Exposure during the period such Lender is a Defaulting Lender only to extent allocable to its L/C Exposure for so long as such which cash collateral has been provided by the Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion the L/C Exposure of the LC Exposure of such non-Defaulting Lender Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(bSection 3.03(a) shall be adjusted to give effect to in accordance with such reallocationnon-Defaulting Lenders’ Revolving Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC L/C Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any the Issuing Bank Lenders or any other Lender hereunder, all participation fees payable under Section 2.12(b3.03(a) with respect to such Defaulting Lender’s LC L/C Exposure shall be payable to the applicable Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) Lender until and to the extent that such LC L/C Exposure is reallocated and/or cash collateralized; and;
(d) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Bank Lender shall be required to issue, amend, renew amend or extend increase any Letter of Credit, unless in each case it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline L/C Exposure or LC Exposure, as applicable, will be fully covered by reallocated to the Revolving Commitments of the Nonnon-Defaulting Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 2.20(c)or such Defaulting Lender, and participating interests in any such funded Swingline Loan newly issued or in any such issued, amended, reviewed or extended increased Letter of Credit will shall be allocated among the Nonnon-Defaulting Lenders in a manner consistent with Section 2.20(c)(i10.19(c)(i) (and such Defaulting Lender shall not participate therein). In the event that .
(xe) if (i) a Bankruptcy Event with respect to a Revolving Lender Parent of any Lender shall have occurred occur following the date hereof and for so long as such Bankruptcy Event event shall continue or (yii) the Swingline Lender or any Issuing Bank Lender has a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan, and no Issuing Bank Lender shall be required to issue, amend, renew amend or extend increase any Letter of Credit, unless the Swingline Lender or such Issuing Bank, as the case may be, Lender shall have entered into arrangements with the Borrower or such Revolving Lender Lender, satisfactory to the Swingline Lender or such Issuing Bank, as the case may be, Lender to defease any risk to it in respect of such Lender hereunder arising from the Letter of Credit then proposed to be issued or such Letter of Credit and all other L/C Obligations as to which such Issuing Lender has actual or potential exposure;
(f) any payment of principal, interest, fees or other amounts received by the Administrative Agent hereunder for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article VIII or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 10.06 shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Issuing Lender hereunder; third, to cash collateralize the Issuing Lenders’ fronting exposure with respect to such Defaulting Lender; fourth, as the Borrower may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the 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 (i) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (ii) cash collateralize the Issuing Lenders’ future fronting exposure with respect to such Defaulting Lender with respect to future Letters of Credit issued under this Agreement; sixth, to the payment of any amounts owing to the Lenders or the Issuing Lenders as a result of any judgment of a court of competent jurisdiction obtained by any Lender or the Issuing Lenders against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is a payment of the principal amount of any Loans or participations in Letters of Credit in respect of which such Defaulting Lender has not fully funded its appropriate share, such payment shall be applied solely to pay the Loans of, and L/C Obligations owed to, all non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or L/C Obligations owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in L/C Obligations are held by the Lenders pro rata in accordance with the Commitments. In Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto; and
(g) in the event that the Administrative Agent, the Borrower, the Swingline Lender Borrower and each Issuing Bank Lender each agree agrees in writing that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender (a “Restored Lender”), then the Swingline Exposure and LC L/C Exposure of the Revolving Lenders shall be reallocated in accordance with their Applicable Percentages readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Restored Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Restored Lender to hold such Loans in accordance with its Applicable Percentage (Revolving Percentage; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the term “Applicable Percentage” meaningBorrower while that Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender. Notwithstanding anything to the contrary contained herein, the rights and remedies against a Defaulting Lender hereunder are in addition to other rights and remedies which the Borrower may have against such Defaulting Lender with respect to such Defaulting Lender’s failure to fund any portion of its Loans required to be funded by it hereunder, and which the Administrative Agent, any Issuing Lender or any Lender may have against such Defaulting Lender with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph, the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated including the Revolving Commitment of such Restored Lender but disregarding the Revolving Commitments of the Defaulting Lenders at such time)failure.
Appears in 2 contracts
Sources: Competitive Advance and Revolving Credit Agreement (Raytheon Co/), Five Year Competitive Advance and Revolving Credit Agreement (Raytheon Co/)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(ai) commitment fees shall cease to accrue on the unused amount unfunded portion of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a)2.3 [Commitment Fees];
(bii) the Revolving Commitment and Revolving Exposure outstanding Loans of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.0212.1 [Modifications, Amendments or Waivers]); provided provided, that any this clause (ii) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of all Lenders such Lender or all Lenders each Lender directly affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereofthereby;
(ciii) if any Swingline Exposure Swing Loans are outstanding or LC Exposure exists any Letter of Credit Obligations exist at the time such Revolving Lender becomes a Defaulting Lender Lender, then:
(ia) all or any part of the Swingline Exposure outstanding Swing Loans and LC Exposure Letter of Credit Obligations of such Defaulting Lender shall be reallocated among the Nonnon-Defaulting Lenders in accordance with their respective Applicable Percentages (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph (c), the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated disregarding the Revolving Commitments of the Defaulting Lenders at such time) Ratable Shares but only to the extent that (x) the sum of all Non-Defaulting Lenders’ Revolving Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure Facility Usage does not exceed the sum total of all Nonnon-Defaulting Lenders’ ' Revolving Credit Commitments, and (y) no Potential Default or Event of Default has occurred and is continuing at such time;
(iib) if the reallocation described in clause (ia) above cannot, or can only partially, be effected, the Borrower Borrowers shall within one Business Day following notice by the Administrative Agent (Ax) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated outstanding Swing Loans, and (By) second, cash collateralize for the benefit of the Issuing Banks Lender the portion of Borrowers' obligations corresponding to such Defaulting Lender’s LC Exposure that has not been reallocated 's Letter of Credit Obligations (after giving effect to any partial reallocation pursuant to clause (a) above) in accordance with a deposit account held at the procedures set forth in Section 2.05(i) Administrative Agent for so long as such LC Exposure is Letter of Credit Obligations are outstanding;
(iiic) if the Borrower Borrowers cash collateralizes any portion of such Defaulting Lender’s LC Exposure 's Letter of Credit Obligations pursuant to clause (iib) above, the Borrower Borrowers shall not be required to pay participation any fees to such Defaulting Lender pursuant to Section 2.12(b) 2.8.2 [Letter of Credit Fees] with respect to such portion Defaulting Lender's Letter of Credit Obligations during the period such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC Exposure is 's Letter of Credit Obligations are cash collateralized;
(ivd) if any portion the Letter of Credit Obligations of the LC Exposure of such non-Defaulting Lender is Lenders are reallocated pursuant to clause (ia) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(b) Section 2.8.2 [Letter of Credit Fees] shall be adjusted to give effect to in accordance with such reallocationnon-Defaulting Lenders' Ratable Share; and
(ve) if all or any portion of such Defaulting Lender’s LC Exposure is 's Letter of Credit Obligations are neither reallocated nor cash collateralized pursuant to clause (ia) or (iib) above, then, without prejudice to any rights or remedies of any the Issuing Bank Lender or any other Lender hereunder, all participation fees Letter of Credit Fees payable under Section 2.12(b) 2.8.2 [Letter of Credit Fees] with respect to such Defaulting Lender’s LC Exposure 's Letter of Credit Obligations shall be payable to the Issuing Banks Lender (and allocated among them ratably based on the amount of not to such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is Letter of Credit Obligations are reallocated and/or cash collateralized; and
(div) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lender PNC shall not be required to fund any Swingline Loan Swing Loans and no the Issuing Bank Lender shall not be required to issue, amend, renew amend or extend increase any Letter of Credit, unless in each case it (a) with respect to Letters of Credit, such Issuing Lender is satisfied that the related exposure and the Defaulting Lender’s 's then outstanding Swingline Exposure or LC Exposure, as applicable, Letter of Credit Obligations will be fully 100% covered by the Revolving Credit Commitments of the Nonnon-Defaulting Lenders and/or cash collateral will be provided by the Borrower Borrowers in accordance with Section 2.20(c2.10(iii), and participating (b) with respect to Swing Loans, the amount of requested Swing Loans when allocated to non-Defaulting Lenders plus outstanding Swing Loans will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Lenders. Participating interests in any such funded Swingline newly made Swing Loan or in any such issued, amended, reviewed newly issued or extended increased Letter of Credit will shall be allocated among the Nonnon-Defaulting Lenders in a manner consistent with Section 2.20(c)(i2.10(iii)(a) (and such Defaulting Lender shall not participate therein). In the event that If (xi) a Bankruptcy Event with respect to a Revolving parent company of any Lender Parent shall have occurred occur following the date hereof and for so long as such Bankruptcy Event event shall continue continue, or (yii) PNC or the Swingline Issuing Lender or any Issuing Bank has a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender PNC shall not be required to fund any Swingline Loan, Swing Loan and no the Issuing Bank Lender shall not be required to issue, amend, renew amend or extend increase any Letter of Credit, unless PNC or the Swingline Lender or such Issuing BankLender, as the case may be, shall have entered into arrangements with the Borrower Borrowers or such Revolving Lender Lender, satisfactory to PNC or the Swingline Lender or such Issuing BankLender, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the BorrowerBorrowers, PNC and the Swingline Issuing Lender and each Issuing Bank each agree in writing that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender (a “Restored Lender”), then the Swingline Exposure Administrative Agent will so notify the parties hereto, and LC Exposure the Ratable Share of the Revolving Swing Loans and Letter of Credit Obligations of the Lenders shall be reallocated in accordance with their Applicable Percentages readjusted to reflect the inclusion of such Lender's Commitment, and on such date such Restored Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Swing Loans) as the Administrative Agent shall determine may be necessary in order for such Restored Lender to hold such Loans in accordance with its Applicable Percentage (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph, the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated including the Revolving Commitment of such Restored Lender but disregarding the Revolving Commitments of the Defaulting Lenders at such time)Ratable Share.
Appears in 2 contracts
Sources: Credit Agreement (Foster L B Co), Credit Agreement (Foster L B Co)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unused amount portion of the Revolving Commitment Commitments of such Defaulting Lender pursuant to Section 2.12(a);
(b) the Revolving Commitment Commitments and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.0211.02); provided that any this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of all Lenders such Lender or all Lenders each Lender affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereofthereby;
(c) if any Swingline Exposure or US Tranche LC Exposure exists at the time such Revolving a US Tranche Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and US Tranche LC Exposure of such Defaulting Lender shall be reallocated among the Nonnon-Defaulting Lenders constituting US Tranche Lenders in accordance with their respective Applicable Percentages (with the term “Applicable Percentage” meaningUS Tranche Revolving Percentages, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph (c), the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated disregarding the Revolving Commitments of the Defaulting Lenders at such time) but only to the extent that (A) the sum of all Nonnon-Defaulting Lenders’ US Tranche Revolving Exposures plus such Defaulting Lender’s Swingline Exposure and US Tranche LC Exposure does not exceed the sum total of all Nonnon-Defaulting Lenders’ US Tranche Revolving CommitmentsCommitments and (B) each non-Defaulting Lender’s US Tranche Revolving Exposure does not exceed such non-Defaulting Lender’s US Tranche Revolving Commitment;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one (1) Business Day following notice by the Administrative Agent (A) firstAgent, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (B) second, Company shall cash collateralize for the benefit of the Issuing Banks Bank only the portion of Company’s obligations corresponding to such Defaulting Lender’s LC Exposure that has not been reallocated in accordance with the procedures set forth in Section 2.05(i2.05(j) for so long as such LC Exposure is outstanding;
(iii) if the Borrower Company cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower Company shall not be required to pay participation any fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such the non-Defaulting Lender Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(b) shall be adjusted to give effect to in accordance with such reallocationnon-Defaulting Lenders’ US Tranche Revolving Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any the Issuing Bank or any other Lender hereunder, all participation letter of credit fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) Bank until and to the extent that such LC Exposure is reallocated and/or cash collateralized;
(d) [reserved]; and
(de) in the case of a US Tranche Lender, so long as such Revolving Lender is a Defaulting Lender, the Swingline Lender Issuing Bank shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew amend or extend increase any Letter of Credit, unless in each case it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure or LC Exposure, as applicable, will be fully 100% covered by the US Tranche Revolving Commitments of the Nonnon-Defaulting Lenders and/or cash collateral will be provided by the Borrower Company in accordance with Section 2.20(c2.23(c), and participating interests in any such funded Swingline Loan newly issued or in any such issued, amended, reviewed or extended increased Letter of Credit will shall be allocated among the Nonnon-Defaulting Lenders in a manner consistent with Section 2.20(c)(i2.23(c)(i) (and such Defaulting Lender shall not participate therein). In the event that No reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender, including any claim of a non-Defaulting Lender as a result of such non-Defaulting Lender’s increased exposure following such reallocation.
(xi) a Bankruptcy Event or a Bail-In Action with respect to a Revolving Parent of any Lender Parent shall have occurred occur following the date hereof and for so long as such Bankruptcy Event event shall continue or (yii) the Swingline Lender or any Issuing Bank has a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender such Issuing Bank shall not be required to fund any Swingline Loan, and no Issuing Bank shall be required to issue, amend, renew amend or extend increase any Letter of Credit, unless the Swingline Lender or such Issuing Bank, as the case may be, Bank shall have entered into arrangements with the Borrower Borrowers or such Revolving Lender Lender, satisfactory to the Swingline Lender or such Issuing Bank, as the case may be, Bank to defease any risk to it in respect of such Lender hereunder. Cash collateral (or the appropriate portion thereof) provided to reduce the Issuing Bank’s LC Exposure shall no longer be required to be held as cash collateral pursuant to this Section 2.23 following (i) the elimination of the applicable LC Exposure (including by the termination of Defaulting Lender status of the applicable Lender), or (ii) the determination by the Administrative Agent and the Issuing Bank that there exists excess cash collateral. In the event that each of the Administrative Agent, the Borrower, Company and the Swingline Lender and each Issuing Bank each agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender (a “Restored Lender”), then the Swingline Exposure and LC Exposure of the Revolving Lenders shall be reallocated in accordance with their Applicable Percentages readjusted to reflect the inclusion of such Lender’s Commitments and on the date of such date readjustment such Restored Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Restored Lender to hold such Loans in accordance with its Applicable Percentage (with the term “Applicable related Tranche Percentage” meaning, ; provided that no adjustments will be made retroactively with respect to any Lender for purposes of reallocations to be fees accrued or payments made pursuant to this paragraph, the percentage by or on behalf of the Aggregate Revolving Commitment represented Company while such Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release or any claim or any party hereunder arising from such Lender’s Revolving Commitment at the time of such reallocation calculated including the Revolving Commitment of such Restored Lender but disregarding the Revolving Commitments of the having been a Defaulting Lenders at such time)Lender.
Appears in 2 contracts
Sources: Credit Agreement (Insight Enterprises Inc), Credit Agreement (Insight Enterprises Inc)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment facility fees shall cease to accrue on the unused amount of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a2.11(a);
(b) the Revolving Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided that any amendment, waiver or other modification requiring the consent of all Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereof;
(c) if any Swingline Exposure or LC Exposure exists at the time such Revolving Lender becomes a Defaulting Lender then:
(i) all so long as no Default or any part Event of Default has occurred and is continuing, the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the Non-Defaulting Lenders in accordance with their respective Applicable Percentages (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph (c), the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated disregarding the Revolving Commitments of the Defaulting Lenders at such time) but only to the extent that the sum of all Non-Defaulting Lenders’ Revolving Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the sum of all Non-Defaulting Lenders’ Revolving Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent (A) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (B) secondAgent, cash collateralize for the benefit of the Issuing Banks the portion of such Defaulting Lender’s LC Exposure that has not been reallocated in accordance with the procedures set forth in Section 2.05(i2.05(j) for so long as such LC Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower shall not be required to pay participation fees to such Defaulting Lender pursuant to Section 2.12(b2.11(b) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such Defaulting Lender is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a2.11(a) and 2.12(b2.11(b) shall be adjusted to give effect to such reallocation; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all facility fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment utilized by such LC Exposure) and participation fees payable under Section 2.12(b2.11(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless in each case it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline LC Exposure or LC Exposure, as applicable, will be fully covered by the Revolving Commitments of the Non-Defaulting Lenders and/or cash collateral provided by the Borrower in accordance with Section 2.20(c2.22(c), and participating interests in any such funded Swingline Loan or in any such issued, amended, reviewed or extended Letter of Credit will be allocated among the Non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i2.22(c)(i) (and such Defaulting Lender shall not participate therein). In the event that (x) a Bankruptcy Event with respect to a Revolving Lender Parent shall have occurred following the date hereof and for so long as such Bankruptcy Event shall continue or (y) the Swingline Lender or any Issuing Bank has a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan, and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless the Swingline Lender or such Issuing Bank, as the case may be, Bank shall have entered into arrangements with the Borrower or such Revolving Lender satisfactory to the Swingline Lender or such Issuing Bank, as the case may be, Bank to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the Borrower, the Swingline Lender Borrower and each Issuing Bank each agree (provided that the Borrower’s agreement shall not be required if an Event of Default has occurred and is continuing) that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender (a “Restored Lender”), then the Swingline Exposure and LC Exposure of the Revolving Lenders shall be reallocated in accordance with their Applicable Percentages readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Restored Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Restored Lender to hold such Loans in accordance with its Applicable Percentage (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph, the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated including the Revolving Commitment of such Restored Lender but disregarding the Revolving Commitments of the Defaulting Lenders at such time).
Appears in 2 contracts
Sources: Credit Agreement (Macy's, Inc.), Credit Agreement (Macy's, Inc.)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unused amount of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a2.13(a);
(b) the Revolving Commitment and Revolving Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders Lenders, the Supermajority Lenders, a Majority in Interest of any Class or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided that any amendment, waiver or other modification requiring the consent of all Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereof;
(c) if any Swingline Exposure, LC Exposure or LC Exposure Protective Advance exists at the time such Revolving Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and of such Defaulting Lender (other than any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c)), the LC Exposure of such Defaulting Lender (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.06(d) and 2.06(f)) and such Defaulting Lender’s Applicable Percentage of the outstanding Protective Advances shall be reallocated among the Non-Defaulting Lenders in accordance with their respective Applicable Percentages (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph (c), the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated disregarding the Revolving Commitments of the Defaulting Lenders at such time) but only to the extent that the sum of all Non-Defaulting Lenders’ Revolving Total Exposures plus after giving effect to such Defaulting Lender’s Swingline Exposure and LC Exposure does reallocation would not exceed the sum of all Non-Defaulting Lenders’ Revolving Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower Borrowers shall within one Business Day following notice by the Administrative Agent (A) first, prepay the portion of such Defaulting Lender’s Applicable Percentage of any Protective Advances that may be outstanding that has not been reallocated, (B) second, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (BC) secondthird, cash collateralize for the benefit of the Issuing Banks the portion of such Defaulting Lender’s LC Exposure that has not been reallocated in accordance with the procedures set forth in Section 2.05(i2.06(i) for so long as such LC Exposure is outstanding;
(iii) if the a Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower shall not be required to pay participation fees to such Defaulting Lender pursuant to Section 2.12(b2.13(b) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such Defaulting Lender is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(bSection 2.13(b) shall be adjusted to give effect to such reallocation; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all participation fees payable under Section 2.12(b2.13(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless unless, in each case case, it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure or LC Exposure, as applicable, will be fully covered by the Revolving Commitments of the Non-Defaulting Lenders and/or cash collateral provided by the Borrower Company in accordance with Section 2.20(c2.21(c), and participating interests in any such funded Swingline Loan or in any such issued, amended, reviewed renewed or extended Letter of Credit will be allocated among the Non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i2.21(c)(i) (and such Defaulting Lender shall not participate therein). In the event that (x) a Bankruptcy Event with respect to a Revolving Lender Parent shall have occurred following the date hereof July 26, 2013, and for so long as such Bankruptcy Event shall continue or (y) the Swingline Lender or any Issuing Bank has a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan, and no such Issuing Bank shall not be required to issue, amend, renew or extend any Letter of Credit, unless the Swingline Lender or such Issuing Bank, as the case may be, shall have entered into arrangements with ▇▇▇▇▇▇ USA and the applicable Borrower or such the applicable Revolving Lender satisfactory to the Swingline Lender or such Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, ▇▇▇▇▇▇ USA, the BorrowerCompany, the Swingline Lender and each Issuing Bank each agree (such agreement not to be unreasonably withheld or delayed) that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender (a “Restored Lender”), then the Swingline Exposure, the LC Exposure and LC Exposure the participations in the Protective Advances of the Revolving Lenders shall be reallocated in accordance with their Applicable Percentages readjusted to reflect the inclusion of such Lender’s Revolving Commitment and on such date such Restored Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Restored Revolving Lender to hold such Loans in accordance with its Applicable Percentage (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph, the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated including the Revolving Commitment of such Restored Lender but disregarding the Revolving Commitments of the Defaulting Lenders at such time).
Appears in 2 contracts
Sources: Credit Agreement (Murphy USA Inc.), Credit Agreement (Murphy USA Inc.)
Defaulting Lenders. Notwithstanding any provision of this Agreement any Loan Document to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unused amount portion of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a2.11(a);
(b) the Revolving Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided that any amendment, waiver or other modification requiring the consent of all Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereof;
(c) if any Swingline Exposure or LC Exposure exists at the time such Revolving Lender becomes a Defaulting Lender Lender, then:
(i) all or any part of the Swingline Exposure (other than any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c)) and LC Exposure of such Defaulting Lender (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.05(d) and Section 2.05(e)) shall be reallocated (effective as of the date such Lender becomes a Defaulting Lender) among the Non-Defaulting Lenders in accordance with their respective Applicable Percentages (with for the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to such reallocation, such Defaulting Lender’s Commitment shall be made pursuant to this paragraph (cdisregarded in determining the Non-Defaulting Lenders’ respective Applicable Percentages), the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated disregarding the Revolving Commitments of the Defaulting Lenders at such time) but only to the extent that (A) the sum of all Non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the sum of all Non-Defaulting Lenders’ Commitments and (B) after giving effect to any such reallocation, no Non-Defaulting Lender’s Revolving CommitmentsCredit Exposure shall exceed such Non-Defaulting Lender’s Commitment;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall shall, within one three Business Day Days following the Borrower’s receipt of written notice by from the Administrative Agent Agent, (A) first, prepay the portion of such Defaulting Lender’s Swingline Exposure (other than any portion thereof referred to in the parenthetical in such clause (i)) that has not been reallocated and (B) second, cash collateralize for the benefit of the applicable Issuing Banks only the portion of Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure (other than any portion thereof referred to in the parenthetical in such clause (i)) that has not been reallocated in accordance with the procedures set forth in Section 2.05(i2.05(k) for so long as such LC Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower shall not be required to pay participation any fees to such Defaulting Lender pursuant to Section 2.12(b2.11(b) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as during the period such portion of such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the such Defaulting Lender’s LC Exposure of such Defaulting Lender is reallocated pursuant to clause (i) above, then the all Letter of Credit participation fees that otherwise would have been payable to such Defaulting Lender under Section 2.11(b) with respect to such Defaulting Lender’s reallocated LC Exposure shall be payable to the Non-Defaulting Lenders pursuant to Sections 2.12(a) and 2.12(b) shall be adjusted to give in accordance with such Non-Defaulting Lenders’ Applicable Percentages after giving effect to such reallocation; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all Letter of Credit participation fees that otherwise would have been payable to such Defaulting Lender under Section 2.12(b2.11(b) with respect to such Defaulting Lender’s unreallocated LC Exposure shall be payable to the Issuing Banks (and allocated among them Banks, ratably based on the amount portion of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) , until and to the extent that such LC Exposure is reallocated and/or cash collateralizedcollateralized pursuant to clause (i) or (ii) above; and
(d) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless in each case it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure or LC Exposure, as applicable, will be fully 100% covered by the Revolving Commitments of the Non-Defaulting Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 2.20(c), and participating interests in any such funded newly made Swingline Loan or in any such issued, amended, reviewed newly issued or extended increased Letter of Credit will shall be allocated among the Non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein). In the event that (x) a Bankruptcy Event with respect to a Revolving any Lender Parent shall have occurred following the date hereof Closing Date and for so long as such Bankruptcy Event shall continue or (y) the Swingline Lender or any continue, no Issuing Bank has a good faith belief that shall be required to issue, amend, extend, renew or increase any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend creditLetter of Credit, and the Swingline Lender shall not be required to fund any Swingline Loan, and no unless such Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless the Swingline Lender or such Issuing Bank, as the case may be, shall have entered into arrangements with the Borrower or such Revolving the applicable Lender reasonably satisfactory to such Issuing Bank or the Swingline Lender or such Issuing BankLender, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the Borrower, the Swingline Lender and each Issuing Bank each agree agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender (a “Restored Lender”), then the Swingline Exposure Exposures and LC Exposure Exposures of the Revolving Lenders shall be reallocated in accordance with their Applicable Percentages readjusted to reflect the inclusion of such Lender’s Commitment, and on such date such Restored Lender shall purchase at par such of the Revolving Credit Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Restored Lender to hold such Revolving Credit Loans in accordance with its Applicable Percentage (with the term “Applicable Percentage” meaning. The rights and remedies against, and with respect to any to, a Defaulting Lender for purposes of reallocations to be made pursuant to under this paragraphSection 2.20 are in addition to, and cumulative and not in limitation of, all other rights and remedies that the Administrative Agent and each Lender, each Issuing Bank, the percentage of Swingline Lender, the Aggregate Revolving Commitment represented by Borrower or any other Loan Party may at any time have against, or with respect to, such Defaulting Lender’s Revolving Commitment at the time of such reallocation calculated including the Revolving Commitment of such Restored Lender but disregarding the Revolving Commitments of the Defaulting Lenders at such time).
Appears in 2 contracts
Sources: Credit Agreement (MPLX Lp), Credit Agreement (Marathon Petroleum Corp)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unused amount unfunded portion of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a)2.10;
(b) the Revolving Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided provided, that any this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of all Lenders such Lender or all Lenders each Lender affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereofthereby;
(c) if any Swingline Exposure or LC Exposure exists at the time such Revolving Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the Nonnon-Defaulting Lenders in accordance with their respective Applicable Percentages (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph (c), the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated disregarding the Revolving Commitments of the Defaulting Lenders at such time) but only to the extent that (x) the sum of all Nonnon-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the sum total of all Nonnon-Defaulting Lenders’ Revolving CommitmentsCommitments and (y) the conditions set forth in Section 4.02 are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent (A) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (B) second, cash collateralize for the benefit of the Issuing Banks Bank only the portion of Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure that has not been reallocated (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.05(i2.04(j) for so long as such LC Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower shall not be required to pay participation any fees to such Defaulting Lender pursuant to Section 2.12(b2.04(j) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such the non-Defaulting Lender Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(b) Section 2.10 shall be adjusted to give effect to in accordance with such reallocationnon-Defaulting Lenders’ Applicable Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any the Issuing Bank or any other Lender hereunder, all participation commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.12(b) 2.10 with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) Bank until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lender Issuing Bank shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew amend or extend increase any Letter of Credit, unless in each case it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline LC Exposure or LC Exposure, as applicable, will be fully 100% covered by the Revolving Commitments of the Nonnon-Defaulting Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 2.20(c2.18(c), and participating interests in any such funded Swingline Loan newly issued or in any such issued, amended, reviewed or extended increased Letter of Credit will shall be allocated among the Nonnon-Defaulting Lenders in a manner consistent with Section 2.20(c)(i2.18(c)(i) (and such Defaulting Lender shall not participate therein). In the event that If (xi) a Bankruptcy Event with respect to a Revolving parent of any Lender Parent shall have occurred occur following the date hereof and for so long as such Bankruptcy Event event shall continue or (yii) the Swingline Lender or any Issuing Bank has a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender Issuing Bank shall not be required to fund any Swingline Loan, and no Issuing Bank shall be required to issue, amend, renew amend or extend increase any Letter of Credit, unless the Swingline Lender or such Issuing Bank, as the case may be, shall have entered into arrangements with the Borrower or such Revolving Lender Lender, satisfactory to the Swingline Lender or such Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. .
(e) In the event that the Administrative Agent, the Borrower, and the Swingline Lender and each Issuing Bank each agree agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender (a “Restored Lender”), then the Swingline Exposure and LC Exposure of the Revolving Lenders shall be reallocated in accordance with their Applicable Percentages readjusted to reflect the inclusion of such Lender’s Revolving Commitment and on such date such Restored Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Restored Lender to hold such Loans in accordance with its Applicable Percentage (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph, the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated including the Revolving Commitment of such Restored Lender but disregarding the Revolving Commitments of the Defaulting Lenders at such time).
Appears in 2 contracts
Sources: Credit Agreement (Fisher Communications Inc), Credit Agreement (Fisher Communications Inc)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(ai) commitment fees shall cease to accrue on the unused amount unfunded portion of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a)2.3 [Commitment Fees];
(bii) the Revolving Commitment and Revolving Exposure outstanding Loans of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.0211.1 [Modifications, Amendments or Waivers]); provided provided, that any this clause (ii) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of all Lenders such Lender or all Lenders each Lender directly affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereofthereby;
(ciii) if any Swingline Exposure Swing Loans are outstanding or LC Exposure exists any Letter of Credit Obligations exist at the time such Revolving Lender becomes a Defaulting Lender Lender, then:
(ia) all or any part of the Swingline Exposure outstanding Swing Loans and LC Exposure Letter of Credit Obligations of such Defaulting Lender shall be reallocated among the Nonnon-Defaulting Lenders in accordance with their respective Applicable Percentages (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph (c), the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated disregarding the Revolving Commitments of the Defaulting Lenders at such time) Ratable Shares but only to the extent that (x) the sum of all Non-Defaulting Lenders’ Revolving Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure Facility Usage does not exceed the sum total of all Nonnon-Defaulting Lenders’ ' Revolving Credit Commitments, and (y) no Potential Default or Event of Default has occurred and is continuing at such time;
(iib) if the reallocation described in clause (ia) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent (Ax) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated outstanding Swing Loans, and (By) second, cash collateralize for the benefit of the Issuing Banks Lender the portion of Borrower's obligations corresponding to such Defaulting Lender’s LC Exposure that has not been reallocated 's Letter of Credit Obligations (after giving effect to any partial reallocation pursuant to clause (a) above) in accordance with a deposit account held at the procedures set forth in Section 2.05(i) Administrative Agent for so long as such LC Exposure is Letter of Credit Obligations are outstanding;
(iiic) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure 's Letter of Credit Obligations pursuant to clause (iib) above, the Borrower shall not be required to pay participation any fees to such Defaulting Lender pursuant to Section 2.12(b) 2.9.2 [Letter of Credit Fees] with respect to such portion Defaulting Lender's Letter of Credit Obligations during the period such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC Exposure is 's Letter of Credit Obligations are cash collateralized;
(ivd) if any portion the Letter of Credit Obligations of the LC Exposure of such non-Defaulting Lender is Lenders are reallocated pursuant to clause (ia) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(b) Section 2.9.2 [Letter of Credit Fees] shall be adjusted to give effect to in accordance with such reallocationnon-Defaulting Lenders' Ratable Share; and
(ve) if all or any portion of such Defaulting Lender’s LC Exposure is 's Letter of Credit Obligations are neither reallocated nor cash collateralized pursuant to clause (ia) or (iib) above, then, without prejudice to any rights or remedies of any the Issuing Bank Lender or any other Lender hereunder, all participation fees Letter of Credit Fees payable under Section 2.12(b) 2.9.2 [Letter of Credit Fees] with respect to such Defaulting Lender’s LC Exposure 's Letter of Credit Obligations shall be payable to the Issuing Banks Lender (and allocated among them ratably based on the amount of not to such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is Letter of Credit Obligations are reallocated and/or cash collateralized; and
(div) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lender PNC Bank shall not be required to fund any Swingline Loan Swing Loans and no the Issuing Bank Lender shall not be required to issue, amend, renew amend or extend increase any Letter of Credit, unless in each case it the Issuing Lender is satisfied that the related exposure and the Defaulting Lender’s 's then outstanding Swingline Exposure or LC Exposure, as applicable, Letter of Credit Obligations will be fully 100% covered by the Revolving Credit Commitments of the Nonnon-Defaulting Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 2.20(c2.10(iii), and participating interests in any such funded Swingline newly made Swing Loan or in any such issued, amended, reviewed newly issued or extended increased Letter of Credit will shall be allocated among the Nonnon-Defaulting Lenders in a manner consistent with Section 2.20(c)(i2.10(iii)(a) (and such Defaulting Lender shall not participate therein). In the event that .
(xi) a Bankruptcy Event with respect to a Revolving parent company of any Lender Parent shall have occurred occur following the date hereof and for so long as such Bankruptcy Event event shall continue continue, or (yii) PNC Bank or the Swingline Issuing Lender or any Issuing Bank has a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender PNC Bank shall not be required to fund any Swingline Loan, Swing Loan and no the Issuing Bank Lender shall not be required to issue, amend, renew amend or extend increase any Letter of Credit, unless PNC Bank or the Swingline Lender or such Issuing BankLender, as the case may be, shall have entered into arrangements with the Borrower or such Revolving Lender Lender, satisfactory to PNC Bank or the Swingline Lender or such Issuing BankLender, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the Borrower, PNC Bank and the Swingline Issuing Lender and each Issuing Bank each agree in writing that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender (a “Restored Lender”), then the Swingline Exposure Administrative Agent will so notify the parties hereto, and LC Exposure the Ratable Share of the Revolving Swing Loans and Letter of Credit Obligations of the Lenders shall be reallocated in accordance with their Applicable Percentages readjusted to reflect the inclusion of such Lender's Commitment, and on such date such Restored Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Swing Loans) as the Administrative Agent shall determine may be necessary in order for such Restored Lender to hold such Loans in accordance with its Applicable Percentage (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph, the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated including the Revolving Commitment of such Restored Lender but disregarding the Revolving Commitments of the Defaulting Lenders at such time)Ratable Share.
Appears in 2 contracts
Sources: Credit Agreement (Hallador Energy Co), Credit Agreement (Hallador Energy Co)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(ai) commitment fees shall cease to accrue on the unused amount unfunded portion of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a)2.3 [Commitment Fees];
(bii) the Revolving Commitment and Revolving Exposure outstanding Loans of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.0211.1 [Modifications, Amendments or Waivers]); provided provided, that any this clause (ii) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of all Lenders such Lender or all Lenders each Lender directly affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereofthereby;
(ciii) if any Swingline Exposure Swing Loans are outstanding or LC Exposure exists any Letter of Credit Obligations exist at the time such Revolving Lender becomes a Defaulting Lender Lender, then:
(ia) all or any part of the Swingline Exposure outstanding Swing Loans and LC Exposure Letter of Credit Obligations of such Defaulting Lender shall be reallocated among the Nonnon-Defaulting Lenders in accordance with their respective Applicable Percentages (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph (c), the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated disregarding the Revolving Commitments of the Defaulting Lenders at such time) Ratable Shares but only to the extent that (x) the sum Revolving Facility Usage does not exceed the total of all Nonnon-Defaulting Lenders’ Revolving Exposures plus Credit Commitments, and (y) no Potential Default or Event of Default has occurred and is continuing at such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the sum of all Non-Defaulting Lenders’ Revolving Commitmentstime;
(iib) if the reallocation described in clause (ia) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent (Ax) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated outstanding Swing Loans, and (By) second, cash collateralize Cash Collateralize for the benefit of the Issuing Banks Lender the portion of Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure that has not been reallocated Letter of Credit Obligations (after giving effect to any partial reallocation pursuant to clause (a) above) in accordance with a deposit account held at the procedures set forth in Section 2.05(i) Administrative Agent for so long as such LC Exposure is Letter of Credit Obligations are outstanding;
(iiic) if the Borrower cash collateralizes Cash Collateralizes any portion of such Defaulting Lender’s LC Exposure Letter of Credit Obligations pursuant to clause (iib) above, the Borrower shall not be required to pay participation any fees to such Defaulting Lender pursuant to Section 2.12(b) 2.9.2 [Letter of Credit Fees] with respect to such portion Defaulting Lender’s Letter of Credit Obligations during the period such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC Exposure is cash collateralizedLetter of Credit Obligations are Cash Collateralized;
(ivd) if any portion the Letter of Credit Obligations of the LC Exposure of such non-Defaulting Lender is Lenders are reallocated pursuant to clause (ia) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(b) Section 2.9.2 [Letter of Credit Fees] shall be adjusted to give effect to in accordance with such reallocationnon-Defaulting Lenders’ Ratable Share; and
(ve) if all or any portion of such Defaulting Lender’s LC Exposure is Letter of Credit Obligations are neither reallocated nor cash collateralized Cash Collateralized pursuant to clause (ia) or (iib) above, then, without prejudice to any rights or remedies of any the Issuing Bank Lender or any other Lender hereunder, all participation fees Letter of Credit Fees payable under Section 2.12(b) 2.9.2 [Letter of Credit Fees] with respect to such Defaulting Lender’s LC Exposure Letter of Credit Obligations shall be payable to the Issuing Banks Lender (and allocated among them ratably based on the amount of not to such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is Letter of Credit Obligations are reallocated and/or cash collateralizedCash Collateralized; and
(div) so long as such Revolving Lender is a Defaulting Lender, the Swingline Swing Loan Lender shall not be required to fund any Swingline Loan Swing Loans and no the Issuing Bank Lender shall not be required to issue, amend, renew amend or extend increase any Letter of Credit, unless in each case it such Issuing Lender is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure or LC Exposure, as applicable, Letter of Credit Obligations will be fully 100% covered by the Revolving Credit Commitments of the Nonnon-Defaulting Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 2.20(c)2.10(iii) [Defaulting Lenders], and participating interests in any such funded Swingline newly made Swing Loan or in any such issued, amended, reviewed newly issued or extended increased Letter of Credit will shall be allocated among the Nonnon-Defaulting Lenders in a manner consistent with Section 2.20(c)(i2.10(iii)(a) [Defaulting Lenders] (and such Defaulting Lender shall not participate therein). In the event that If (xi) a Bankruptcy Event with respect to a Revolving parent company of any Lender Parent shall have occurred occur following the date hereof and for so long as such Bankruptcy Event event shall continue continue, or (yii) the Swingline Swing Loan Lender or any the Issuing Bank Lender has a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Swing Loan Lender shall not be required to fund any Swingline Loan, Swing Loan and no the Issuing Bank Lender shall not be required to issue, amend, renew amend or extend increase any Letter of Credit, unless the Swingline Swing Loan Lender or such the Issuing BankLender, as the case may be, shall have entered into arrangements with the Borrower or such Revolving Lender Lender, satisfactory to the Swingline Swing Loan Lender or such the Issuing BankLender, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the Borrower, the Swingline Swing Loan Lender and each the Issuing Bank each Lender agree in writing that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender (a “Restored Lender”), then the Swingline Exposure Administrative Agent will so notify the parties hereto, and LC Exposure the Ratable Share of the Revolving Swing Loans and Letter of Credit Obligations of the Lenders shall be reallocated in accordance with their Applicable Percentages readjusted to reflect the inclusion of such Lender’s Commitment, and on such date such Restored Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Swing Loans) as the Administrative Agent shall determine may be necessary in order for such Restored Lender to hold such Loans in accordance with its Applicable Percentage (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph, the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated including the Revolving Commitment of such Restored Lender but disregarding the Revolving Commitments of the Defaulting Lenders at such time)Ratable Share.
Appears in 2 contracts
Sources: Credit Agreement (Meridian Bioscience Inc), Credit Agreement (Meridian Bioscience Inc)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(ai) commitment fees shall cease to accrue on the unused amount unfunded portion of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a)2.3 [Commitment Fees];
(bii) the Revolving Commitment and Revolving Exposure outstanding Loans of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.0211.1 [Modifications, Amendments or Waivers]); provided provided, that any this clause (ii) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of all Lenders such Lender or all Lenders each Lender directly affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereofthereby;
(ciii) if any Swingline Exposure Swing Loans are outstanding or LC Exposure exists any Letter of Credit Obligations exist at the time such Revolving Lender becomes a Defaulting Lender Lender, then:
(ia) all or any part of the Swingline Exposure outstanding Swing Loans and LC Exposure Letter of Credit Obligations of such Defaulting Lender shall be reallocated among the Nonnon-Defaulting Lenders in accordance with their respective Applicable Percentages (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph (c), the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated disregarding the Revolving Commitments of the Defaulting Lenders at such time) Ratable Shares but only to the extent that (x) the sum Revolving Facility Usage does not exceed the total of all Nonnon-Defaulting Lenders’ Revolving Exposures plus Credit Commitments, and (y) no Potential Default or Event of Default has occurred and is continuing at such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the sum of all Non-Defaulting Lenders’ Revolving Commitmentstime;
(iib) if the reallocation described in clause (ia) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent (Ax) first, prepay such outstanding Swing Loans, and (y) second, Cash Collateralize for the portion benefit of such Issuing Lender the Borrower’s obligations corresponding to such Defaulting Lender’s Swingline Exposure that has not been reallocated and Letter of Credit Obligations (Bafter giving effect to any partial reallocation pursuant to clause (a) second, cash collateralize for above) in a deposit account held at the benefit of the Issuing Banks the portion of such Defaulting Lender’s LC Exposure that has not been reallocated in accordance with the procedures set forth in Section 2.05(i) Administrative Agent for so long as such LC Exposure is Letter of Credit Obligations are outstanding;
(iiic) if the Borrower cash collateralizes Cash Collateralizes any portion of such Defaulting Lender’s LC Exposure Letter of Credit Obligations pursuant to clause (iib) above, the Borrower shall not be required to pay participation any fees to such Defaulting Lender pursuant to Section 2.12(b) 2.9.2 [Letter of Credit Fees] with respect to such portion Defaulting Lender’s Letter of Credit Obligations during the period such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC Exposure is cash collateralizedLetter of Credit Obligations are Cash Collateralized;
(ivd) if any portion the Letter of Credit Obligations of the LC Exposure of such non-Defaulting Lender is Lenders are reallocated pursuant to clause (ia) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(b) Section 2.9.2 [Letter of Credit Fees] shall be adjusted to give effect to in accordance with such reallocationnon-Defaulting Lenders’ Ratable Share; and
(ve) if all or any portion of such Defaulting Lender’s LC Exposure is Letter of Credit Obligations are neither reallocated nor cash collateralized Cash Collateralized pursuant to clause (ia) or (iib) above, then, without prejudice to any rights or remedies of any such Issuing Bank Lender or any other Lender hereunder, all participation fees Letter of Credit Fees payable under Section 2.12(b) 2.9.2 [Letter of Credit Fees] with respect to such Defaulting Lender’s LC Exposure Letter of Credit Obligations shall be payable to the such Issuing Banks Lender (and allocated among them ratably based on the amount of not to such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is Letter of Credit Obligations are reallocated and/or cash collateralizedCash Collateralized; and
(div) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lender PNC shall not be required to fund any Swingline Loan Swing Loans and no such Issuing Bank Lender shall not be required to issue, amend, renew amend or extend increase any Letter of Credit, unless in each case it such Issuing Lender is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure or LC Exposure, as applicable, Letter of Credit Obligations will be fully 100% covered by the Revolving Credit Commitments of the Nonnon-Defaulting Lenders and/or cash collateral Cash Collateral will be provided by the Borrower in accordance with Section 2.20(c2.10(iii), and participating interests in any such funded Swingline newly made Swing Loan or in any such issued, amended, reviewed newly issued or extended increased Letter of Credit will shall be allocated among the Nonnon-Defaulting Lenders in a manner consistent with Section 2.20(c)(i2.10(iii)(a) (and such Defaulting Lender shall not participate therein). In the event that If (xi) a Bankruptcy Event with respect to a Revolving parent company of any Lender Parent shall have occurred occur following the date hereof and for so long as such Bankruptcy Event event shall continue continue, or (yii) the Swingline PNC or an Issuing Lender or any Issuing Bank has a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender PNC shall not be required to fund any Swingline Loan, Swing Loan and no the Issuing Bank Lenders shall not be required to issue, amend, renew amend or extend increase any Letter of Credit, unless the Swingline Lender PNC or such Issuing BankLender, as the case may be, shall have entered into arrangements with the Borrower or such Revolving Lender Lender, satisfactory to the Swingline Lender PNC or such Issuing BankLender, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the Borrower, PNC and the Swingline Issuing Lender and each Issuing Bank each agree in writing that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender (a “Restored Lender”), then the Swingline Exposure Administrative Agent will so notify the parties hereto, and LC Exposure the Ratable Share of the Revolving Swing Loans and Letter of Credit Obligations of the Lenders shall be reallocated in accordance with their Applicable Percentages readjusted to reflect the inclusion of such Lender’s Commitment, and on such date such Restored Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Swing Loans) as the Administrative Agent shall determine may be necessary in order for such Restored Lender to hold such Loans in accordance with its Applicable Percentage (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph, the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated including the Revolving Commitment of such Restored Lender but disregarding the Revolving Commitments of the Defaulting Lenders at such time)Ratable Share.
Appears in 2 contracts
Sources: Credit Agreement (Koppers Holdings Inc.), Credit Agreement (Koppers Holdings Inc.)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees if any LC Exposure exists at the time a Lender is a Defaulting Lender, the Applicant Party shall cease within two (2) Business Days following notice by the Administrative Agent cash collateralize or (to accrue on the unused amount of the Revolving Commitment of extent permitted by Section 2.12(c)) provide Permitted Cover for such Defaulting Lender pursuant to Lender’s LC Exposure in accordance with the procedures set forth in Section 2.12(a)2.12 for so long as such LC Exposure is outstanding;
(b) the Revolving Commitment and Revolving LC Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 9.028.05); , provided that any amendmentwaiver, waiver amendment or other modification requiring extending or increasing the consent Commitment of all Lenders such Defaulting Lender or all Lenders affected thereby shall, except as otherwise provided in Section 9.02, reducing the principal of any LC Disbursement made by such Defaulting Lender shall require the consent of such Defaulting Lender in accordance with the terms hereofLender;
(c) if any Swingline Exposure the Applicant Party cash collateralizes or LC Exposure exists at the time such Revolving Lender becomes a Defaulting Lender then:
provides (i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the Non-Defaulting Lenders in accordance with their respective Applicable Percentages (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph (c), the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated disregarding the Revolving Commitments of the Defaulting Lenders at such time) but only to the extent that the sum of all Non-Defaulting Lenders’ Revolving Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the sum of all Non-Defaulting Lenders’ Revolving Commitments;
(iipermitted by Section 2.12(c)) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent (A) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (B) second, cash collateralize Permitted Cover for the benefit of the Issuing Banks the portion of such Defaulting Lender’s LC Exposure that has not been reallocated in accordance with the procedures set forth in Section 2.05(i) for so long as such LC Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to the foregoing clause (ii) abovea), the Borrower Applicant Party shall not be required to pay participation fees the Letter of Credit Fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such Defaulting Lender is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(b) shall be adjusted to give effect to such reallocation; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all participation fees payable under Section 2.12(b2.19(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to during the Issuing Banks (and allocated among them ratably based on the amount of period such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued is cash collateralized or covered by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralizedPermitted Cover; and
(d) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Bank Lender shall be required to issue, amend, renew amend or extend increase any Letter of Credit, Credit unless in each case it is satisfied that cash collateral or (to the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure or LC Exposure, as applicable, extent permitted by Section 2.12(c)) Permitted Cover will be fully covered by the Revolving Commitments of the Non-Defaulting Lenders and/or cash collateral provided by the Borrower Applicant Party in accordance with Section 2.20(c), and participating interests in any such funded Swingline Loan or in any such issued, amended, reviewed or extended Letter of Credit will be allocated among the Non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i) foregoing clause (and such Defaulting Lender shall not participate therein). In the event that (x) a Bankruptcy Event with respect to a Revolving Lender Parent shall have occurred following the date hereof and for so long as such Bankruptcy Event shall continue or (y) the Swingline Lender or any Issuing Bank has a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan, and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless the Swingline Lender or such Issuing Bank, as the case may be, shall have entered into arrangements with the Borrower or such Revolving Lender satisfactory to the Swingline Lender or such Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the Borrower, the Swingline Lender and each Issuing Bank each agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender (a “Restored Lender”), then the Swingline Exposure and LC Exposure of the Revolving Lenders shall be reallocated in accordance with their Applicable Percentages and on such date such Restored Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Restored Lender to hold such Loans in accordance with its Applicable Percentage (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph, the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated including the Revolving Commitment of such Restored Lender but disregarding the Revolving Commitments of the Defaulting Lenders at such timea).
Appears in 2 contracts
Sources: Revolving Performance Letter of Credit Facility Agreement (Fluor Corp), Letter of Credit Facility Agreement (Fluor Corp)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unused amount unfunded portion of the Revolving Credit Commitment of such Defaulting Lender pursuant to Section 2.12(a2.5(a);
(b) the Revolving Credit Commitment and Revolving Exposure Percentage of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Majority Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.0211.1); provided provided, that any this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of all Lenders such Lender or all Lenders each Lender affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereofthereby;
(c) if any Swingline Exposure or LC L/C Exposure exists at the time such Revolving Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC L/C Exposure of such Defaulting Lender (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) shall be reallocated among the Nonnon-Defaulting Lenders in accordance with their respective Applicable Revolving Credit Commitment Percentages (with excluding from determination thereof the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph (c), the percentage of the Aggregate Revolving Credit Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated disregarding the Revolving Commitments of the Defaulting Lenders at such timeLender) but only to the extent that the sum of all Nonnon-Defaulting Lenders’ Revolving Exposures Extensions of Credit plus such Defaulting Lender’s Swingline Exposure and LC L/C Exposure does not exceed the sum total of all Nonnon-Defaulting Lenders’ Revolving Credit Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one two Business Day Days following notice by the Administrative Agent (Ax) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (By) second, cash collateralize for the benefit of the Issuing Banks Lender only the portion of Borrower’s obligations corresponding to such Defaulting Lender’s LC L/C Exposure that has not been reallocated (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.05(i) 4.8 for so long as such LC L/C Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC L/C Exposure pursuant to clause (ii) above, the Borrower shall not be required to pay participation any fees to such Defaulting Lender pursuant to Section 2.12(b4.3(a) with respect to such portion of Defaulting Lender’s L/C Exposure during the period such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC L/C Exposure is cash collateralized;
(iv) if any portion the L/C Exposure of the LC Exposure of such non-Defaulting Lender Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(aSection 2.5(a) and 2.12(bSection 4.3(a) shall be adjusted to give effect to in accordance with such reallocationnon-Defaulting Lenders’ Revolving Credit Commitment Percentages (excluding from determination thereof the Revolving Credit Commitment of such Defaulting Lender); and
(v) if all or any portion of such Defaulting Lender’s LC L/C Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any the Issuing Bank Lender or any other Lender hereunder, all participation letter of credit fees (including fronting fees) payable under Section 2.12(b4.3(a) with respect to such Defaulting Lender’s LC L/C Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) Lender until and to the extent that such LC L/C Exposure is reallocated and/or cash collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender, the ▇▇▇▇▇ Swingline Lender Lenders shall not be required to fund any Swingline Loan and no the Issuing Bank Lender shall not be required to issue, amend, renew amend or extend increase any Letter of Credit, unless in each case it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline L/C Exposure or LC Exposure, as applicable, will be fully 100% covered by the Revolving Credit Commitments of the Nonnon-Defaulting Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 2.20(c3.14(c), and participating interests interestsSwingline Exposure related to in any such funded newly made Swingline Loan or in L/C Exposure related to any such issued, amended, reviewed newly issued or extended increased Letter of Credit will shall be allocated among the Nonnon-Defaulting Lenders in a manner consistent with Section 2.20(c)(i3.14(c)(i) (and such Defaulting Lender shall not participate therein). In the event that If (xi) a Bankruptcy Event with respect to a Revolving Lender Parent of any Lender shall have occurred occur following the date hereof and for so long as such Bankruptcy Event event shall continue or (yii) the theany Swingline Lender or any the Issuing Bank Lender has a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the ▇▇▇▇▇ Swingline Lender shall not be required to fund any Swingline Loan, Loan and no the Issuing Bank Lender shall not be required to issue, amend, renew amend or extend increase any Letter of Credit, unless the Swingline Lender Lenders or such the Issuing BankLender, as the case may be, shall have entered into arrangements with the Borrower or such Revolving Lender Lender, satisfactory to the theeach Swingline Lender or such the Issuing BankLender, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the Borrower, the theeach Swingline Lender and the Issuing Lender each Issuing Bank each agree agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender (a “Restored Lender”), then the Swingline Exposure and LC L/C Exposure of the Revolving Lenders shall be reallocated in accordance with their Applicable Percentages readjusted to reflect the inclusion of such Lender’s Revolving Credit Commitment and on such date such Restored Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Restored Lender to hold such Loans in accordance with its Applicable Percentage (with the term “Applicable Revolving Credit Commitment Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph, the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated including the Revolving Commitment of such Restored Lender but disregarding the Revolving Commitments of the Defaulting Lenders at such time).
Appears in 1 contract
Sources: Credit Agreement (Henry Schein Inc)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(ai) commitment fees shall cease to accrue on the unused amount unfunded portion of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a)2.3 [Commitment Fee];
(bii) the Revolving Commitment and Revolving Exposure outstanding Loans of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.0211.1 [Modifications, Amendments or Waivers]); provided provided, that any this clause (ii) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of all Lenders such Lender or all Lenders each Lender directly affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereofthereby;
(ciii) if any Swingline Exposure Swing Loans are outstanding or LC Exposure exists any Letter of Credit Outstandings exist at the time such Revolving Lender becomes a Defaulting Lender Lender, then:
(ia) all or any part of the Swingline Exposure outstanding Swing Loans and LC Exposure Letter of Credit Outstandings of such Defaulting Lender shall be reallocated among the Nonnon-Defaulting Lenders in accordance with their respective Applicable Percentages (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph (c), the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated disregarding the Revolving Commitments of the Defaulting Lenders at such time) Ratable Shares but only to the extent that (x) such reallocation does not cause the sum of all Non-Defaulting Lenders’ the Revolving Exposures Credit Loans made by such Lender plus such Lender’s Ratable Share of the outstanding Swing Loans and Letter of Credit Outstandings to exceed such non-Defaulting Lender’s Swingline Exposure Commitment, and LC Exposure does not exceed the sum (y) no Potential Default or Event of all Non-Defaulting Lenders’ Revolving CommitmentsDefault has occurred and is continuing at such time;
(iib) if the reallocation described in clause (ia) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent prepay such outstanding Swing Loans; provided, however, that if the Borrower elects to replace the applicable Defaulting Lender under Section 5.4.2 [Replacement of a Lender], the Borrower shall be given a ten (A10) first, prepay Business Day grace period before being required to take the portion steps required in this clause (b) (and upon successful replacement of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (B) second, cash collateralize for the benefit of the Issuing Banks the portion of such Lender with a non-Defaulting Lender’s LC Exposure that has not been reallocated in accordance with the procedures set forth in Section 2.05(i) for so long as such LC Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower shall not be required to take such steps);
(c) the Borrower shall not be required to pay participation any fees to such any Defaulting Lender pursuant to Section 2.12(b) 2.9.2 [Letter of Credit Fees] with respect to such portion of such Defaulting Lender’s LC Exposure for so long as Letter of Credit Outstandings during the period such Defaulting Lender remains a Defaulting Lender’s LC Exposure is cash collateralized;
(ivd) if any portion the Letter of Credit Outstandings of the LC Exposure of such Defaulting Lender is Lenders are reallocated pursuant to clause (ia) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(b) Section 2.9.2 [Letter of Credit Fees] shall be adjusted to give effect to such reallocationin accordance with each non-Defaulting Lenders’ Ratable Share; and
(ve) if all or any portion of such Defaulting Lender’s LC Exposure is neither Letter of Credit Outstandings are not reallocated nor cash collateralized pursuant to clause (i) or (iia) above, and such Defaulting Lender is not replaced pursuant to Section 5.4.2 [Replacement of a Lender], then, without prejudice to any rights or remedies of any the Issuing Bank Lender or any other Lender hereunder, all participation fees Letter of Credit Fees payable under Section 2.12(b) 2.9.2 [Letter of Credit Fees] with respect to such Defaulting Lender’s LC Exposure Letter of Credit Outstandings shall be payable to the Issuing Banks Lender (and allocated among them ratably based on the amount of not to such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure Letter of Credit Outstandings are reallocated or such Defaulting Lender is reallocated and/or cash collateralizedreplaced; and
(div) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lender PNC Bank shall not be required to fund any Swingline Loan Swing Loans and no the Issuing Bank Lender shall not be required to issue, amend, renew amend or extend increase any Letter of Credit, unless in each case it such Issuing Lender is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure or LC Exposure, as applicable, will be fully Letter of Credit Outstandings has been 100% covered by the Revolving Credit Commitments of the Nonnon-Defaulting Lenders and/or cash collateral provided by Lenders, or the Borrower in accordance with applicable Defaulting Lender has been replaced pursuant to Section 2.20(c)5.4.2 [Replacement of a Lender], and participating interests in any such funded Swingline newly made Swing Loan or in any such issued, amended, reviewed newly issued or extended increased Letter of Credit will can (and shall, if they can) be allocated among the Nonnon-Defaulting Lenders in a manner consistent with Section 2.20(c)(i2.12(iii)(a) (and such Defaulting Lender shall not participate therein). In the event that If (xi) a Bankruptcy Event with respect to a Revolving parent company of any Lender Parent shall have occurred occur following the date hereof and for so long as such Bankruptcy Event event shall continue continue, or (yii) PNC Bank or the Swingline Issuing Lender or any Issuing Bank has a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender PNC Bank shall not be required to fund any Swingline Loan, Swing Loan and no the Issuing Bank Lender shall not be required to issue, amend, renew amend or extend increase any Letter of Credit, unless PNC Bank or the Swingline Lender or such Issuing BankLender, as the case may be, shall have entered into arrangements with the Borrower or such Revolving Lender Lender, satisfactory to PNC Bank or the Swingline Lender or such Issuing BankLender, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the Borrower, PNC Bank and the Swingline Issuing Lender and each Issuing Bank each agree in writing that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender (a “Restored Lender”), then the Swingline Exposure Agent will so notify the parties hereto, and LC Exposure the Ratable Share of the Revolving Swing Loans and Letter of Credit Outstandings of the Lenders shall be reallocated in accordance with their Applicable Percentages readjusted to reflect the inclusion of such Lender’s Commitment, and on such date such Restored Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Swing Loans) as the Administrative Agent shall determine may be necessary in order for such Restored Lender to hold such Loans in accordance with its Applicable Percentage (with Ratable Share; provided, however, that, without limiting the term “Applicable Percentage” meaningforegoing, with respect in the event the Borrower shall have advised the Agent that it is in the process of replacing the applicable Defaulting Lender pursuant to any Section 5.4.2 [Replacement of a Lender] and as long as the Borrower shall diligently pursue such replacement, the fact that the applicable Defaulting Lender shall have remedied all such matters shall not, in and of itself, make such Defaulting Lender a non-Defaulting Lender for purposes of reallocations to be made pursuant to this paragraph, the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated including the Revolving Commitment of such Restored Lender but disregarding the Revolving Commitments of the Defaulting Lenders at such time)Agreement.
Appears in 1 contract
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unused amount of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a2.11(a);
(b) the Revolving Commitment and Revolving Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders, the Supermajority Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided that any amendment, waiver or other modification requiring the consent of all Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereof;
(c) if any Swingline Protective Advance Exposure or LC Exposure exists at the time such Revolving Lender becomes a Defaulting Lender then:
(i) all or the Protective Advance Exposure (other than any part of the Swingline Exposure portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(b)) and LC Exposure (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(d) and 2.05(f)) of such Defaulting Lender shall be reallocated among the Non-Defaulting Lenders in accordance with their respective Applicable Percentages (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph (c), the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated disregarding the Revolving Commitments of the Defaulting Lenders at such time) but only to the extent that the sum of all Non-Defaulting Lenders’ Revolving Exposures plus after giving effect to such Defaulting Lender’s Swingline Exposure and LC Exposure does reallocation would not exceed the sum of all Non-Defaulting Lenders’ Revolving Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower Borrowers shall within one Business Day following notice by the Administrative Agent (A) first, prepay the portion of such Defaulting Lender’s Swingline Protective Advance Exposure (other than any portion thereof referred to in the parenthetical in such clause (i)) that has not been reallocated and (B) second, cash collateralize in accordance with the procedures set forth in Section 2.05(i) for the benefit of the Issuing Banks the portion of such Defaulting Lender’s LC Exposure (other than any portion thereof referred to in the parenthetical in such clause (i)) that has not been reallocated in accordance with the procedures set forth in Section 2.05(i) for so long as such LC Exposure is outstanding;
(iii) if the a Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the such Borrower shall not be required to pay participation fees to such Defaulting Lender pursuant to Section 2.12(b2.11(b) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such Defaulting Lender is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(bSection 2.11(b) shall be adjusted to give effect to such reallocation; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all participation fees payable under Section 2.12(b2.11(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and (i) no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, Credit unless in each case it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline LC Exposure or LC Exposure, as applicable, will be fully covered by the Revolving Commitments of the Non-Defaulting Lenders and/or cash collateral provided by the a Borrower in accordance with Section 2.20(c), 2.19(c) and (ii) participating interests in any such funded Swingline Loan newly made Protective Advance or in any such issued, amended, reviewed renewed or extended Letter of Credit will be allocated among the Non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i2.19(c)(i) (and such Defaulting Lender shall not participate therein). In the event that (x) a Bankruptcy Event with respect to a Revolving Lender Parent shall have occurred following the date hereof and for so long as such Bankruptcy Event shall continue or (y) the Swingline Lender or any Issuing Bank has a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan, and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless the Swingline Lender or such Issuing Bank, as the case may be, Bank shall have entered into arrangements with the a Borrower or such Revolving Lender satisfactory to the Swingline Lender or such Issuing Bank, as the case may be, Bank to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the Borrower, the Swingline Lender Company and each Issuing Bank each agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender (a “Restored Lender”), then the Swingline Protective Advance Exposure and LC Exposure of the Revolving Lenders shall be reallocated in accordance with their Applicable Percentages readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Restored Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Restored Lender to hold such Loans in accordance with its Applicable Percentage (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph, the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated including the Revolving Commitment of such Restored Lender but disregarding the Revolving Commitments of the Defaulting Lenders at such time).
Appears in 1 contract
Sources: Credit Agreement (GoPro, Inc.)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unused amount of the Revolving Commitment of such no Defaulting Lender pursuant shall be entitled to receive any fee payable under Section 2.12(a) for any period during which that Lender is a Defaulting Lender (and the Borrowers shall not be required to pay any such fee that otherwise would have been required to have been paid to that Defaulting Lender);
(b) the Commitment, the Revolving Commitment Credit Exposure and Revolving Exposure the aggregate principal amount of outstanding Competitive Loans of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.0210.02); provided that any amendment, waiver or other modification requiring the consent of all Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 9.0210.02, require the consent of such Defaulting Lender in accordance with the terms hereof;
(c) if any Swingline Exposure or LC Exposure exists at the time such Revolving Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure (other than any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.05(c) and, in the case of any Defaulting Lender that is a Swingline Lender, other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) and LC Exposure of such Defaulting Lender (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.06(e) and 2.06(f)) shall be reallocated among the Non-Defaulting Lenders in accordance with their respective Applicable Percentages (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph (c), the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated disregarding the Revolving Commitments of the Defaulting Lenders at such time) but only to the extent that (A) the sum of all Non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure (in each case, excluding the portion thereof referred to above) does not exceed the sum of all Non-Defaulting Lenders’ Commitments and (B) after giving effect thereto, the Revolving CommitmentsCredit Exposure of any Non-Defaulting Lender shall not exceed the Commitment of such Non-Defaulting Lender;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower Borrowers shall within one Business Day following notice by the Administrative Agent (A) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated as set forth in such clause and (B) second, cash collateralize for the benefit of the Issuing Banks Lenders the portion of such Defaulting Lender’s LC Exposure that has not been reallocated as set forth in such clause in accordance with the procedures set forth in Section 2.05(i2.06(l) for so long as such LC Exposure is outstanding;
(iii) if the Borrower Borrowers cash collateralizes collateralize any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower Borrowers shall not be required to pay participation fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such Defaulting Lender is reallocated pursuant to clause (i) above, then the participation fees payable to the Lenders pursuant to Sections 2.12(a) and Section 2.12(b) shall be adjusted to give effect to such reallocation;
(v) [reserved]; and
(vvi) if all or any portion of such Defaulting Lender’s LC Exposure that is subject to reallocation pursuant to clause (i) above is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank Lender or any other Lender hereunder, and all participation fees payable under Section 2.12(b) with respect to such Defaulting Lender’s portion of its LC Exposure Exposure, shall be payable to the Issuing Banks Lenders (and allocated among them ratably based on the amount of such Defaulting Lender’s portion of the LC Exposure of such Defaulting Lender attributable to Letters of Credit issued by each Issuing BankLender) until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender, the no Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Bank Lender shall be required to issue, amend, renew or extend any Letter of Credit, unless in each case it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure or LC Exposure, as applicable, will be fully covered by the Revolving Commitments of the Non-Defaulting Lenders and/or cash collateral provided by the Borrower Borrowers in accordance with Section 2.20(c)clause (c) above, and participating interests in any such funded Swingline Loan or in any such issued, amended, reviewed renewed or extended Letter of Credit will be allocated among the Non-Defaulting Lenders in a manner consistent with Section 2.20(c)(iclause (c)(i) above (and such Defaulting Lender shall not participate therein). In the event that (x) a Bankruptcy Event with respect to a Revolving Lender Parent of any Lender shall have occurred following the date hereof and for so long as such Bankruptcy Event shall continue or (y) the Swingline Lender or any Issuing Bank has a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend creditcontinue, the no Swingline Lender shall not be required to fund any Swingline Loan, and no Issuing Bank Lender shall be required to issue, amend, renew or extend any Letter of Credit, unless the such Swingline Lender or such Issuing BankLender, as the case may be, shall have entered into arrangements (including arrangements referred to in clause (c) above, treating such Lender as if it were a Defaulting Lender (with each Lender hereby agreeing to such arrangements)) with the Borrower Borrowers or such Revolving the applicable Lender satisfactory to the such Swingline Lender or such Issuing BankLender, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the Parent Borrower, the each Swingline Lender and each Issuing Bank Lender each agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender (a “Restored Lender”), then the Swingline Exposure and LC Exposure of the Revolving Lenders shall be reallocated in accordance with their Applicable Percentages readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Restored Lender shall purchase at par (plus pay any break funding amounts, determined in accordance with Section 2.16, to the extent such purchase occurs on a date other than on the last day of the Interest Period applicable to thereto) such of the Revolving Syndicated Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Restored Lender to hold such Loans in accordance with its Applicable Percentage (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph, the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated including the Revolving Commitment of such Restored Lender but disregarding the Revolving Commitments of the Defaulting Lenders at such time).
Appears in 1 contract
Sources: Credit Agreement (Dillards Inc)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unused amount unfunded portion of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a2.10(a);
(b) the Revolving Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Majority Lenders or any other requisite Required Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided, that, except as otherwise provided that any in Section 9.02, this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of all Lenders such Lender or all Lenders each Lender directly affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereofthereby;
(c) if any Swingline Exposure or LC Exposure exists at the time such Revolving Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and or LC Exposure (other than (A) the portion of such Swingline Exposure referred to in clause (b) of the definition of such term and (B) any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(d) or (e)) of such Defaulting Lender shall be reallocated (effective as of the date such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders in accordance with their respective Applicable Percentages (with for the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to such reallocation, such Defaulting Lender’s Commitment shall be made pursuant to this paragraph (cdisregarded in determining the non-Defaulting Lenders’ respective Applicable Percentages), the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated disregarding the Revolving Commitments of the Defaulting Lenders at such time) but only to the extent that (X) the sum of all Nonnon-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the sum total of all Nonnon-Defaulting Lenders’ Revolving Commitments, (Y) after giving effect to any such reallocation, no non-Defaulting Lender’s Credit Exposure shall exceed such non-Defaulting Lender’s Commitment and (Z) no Default or Event of Default has occurred and is continuing at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall shall, within one three (3) Business Day Days following written notice by the Administrative Agent (Ax) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (By) second, cash collateralize collateralize, for the benefit of the applicable Issuing Banks Banks, the portion of Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure that has not been reallocated (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.05(i2.04(j) for so long as such Defaulting Lender’s LC Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower shall not be required to pay any participation fees to such Defaulting Lender pursuant to Section 2.12(b2.10(b) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such the non-Defaulting Lender Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(aSection 2.10(a) and 2.12(bSection 2.10(b) shall be adjusted to give in accordance with such non-Defaulting Lenders’ Applicable Percentages after giving effect to such reallocation; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all participation fees payable under Section 2.12(b2.10(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Banks (and allocated among them Banks, ratably based on the amount portion of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each such Issuing Bank) , until and to the extent that such LC Exposure is reallocated and/or cash collateralizedcollateralized pursuant to clause (i) or (ii) above; and
(d) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew amend or extend increase any Letter of Credit, unless in each case it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline LC Exposure or LC Exposure, as applicable, will be fully 100% covered by the Revolving Commitments of the Nonnon-Defaulting Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 2.20(c2.18(c), and Swingline Exposure related to any such newly made Swingline Loan and participating interests in any such funded Swingline Loan newly issued or in any such issued, amended, reviewed or extended increased Letter of Credit will shall be allocated among the Nonnon-Defaulting Lenders in a manner consistent with Section 2.20(c)(i2.18(c)(i) (and such Defaulting Lender shall not participate therein). In the event that If (xi) a Bankruptcy Event or a Bail-In Action with respect to a Revolving Lender Parent shall have occurred occur following the date hereof and for so long as such Bankruptcy Event event shall continue or (yii) the any Swingline Lender or any Issuing Bank has a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan, Loan and no Issuing Bank shall be required to issue, amend, renew amend or extend increase any Letter of Credit, unless the Swingline Lender or such Issuing Bank, as the case may be, Bank shall have entered into arrangements with the Borrower or such Revolving Lender Lender, satisfactory to the Swingline Lender or such Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the Borrower, the Swingline Lender and each Issuing Bank each agree in writing that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender (a “Restored Lender”), then the Swingline Exposure and LC Exposure Exposures of the Revolving Lenders shall be reallocated in accordance with their Applicable Percentages readjusted to reflect the inclusion of such Lender’s Commitment, and on such date such Restored Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Restored Lender to hold such Loans in accordance with its Applicable Percentage (with the term “Applicable Percentage” meaning. The rights and remedies against, and with respect to any to, a Defaulting Lender for purposes of reallocations to be made pursuant to under this paragraphSection 2.18 are in addition to, and cumulative and not in limitation of, all other rights and remedies that the Administrative Agent and each Lender, each Issuing Bank, the percentage of the Aggregate Revolving Commitment represented by Borrower or any other Loan Party may at any time have against, or with respect to, such Defaulting Lender’s Revolving Commitment at the time of such reallocation calculated including the Revolving Commitment of such Restored Lender but disregarding the Revolving Commitments of the Defaulting Lenders at such time).
Appears in 1 contract
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:Lender:
(a) commitment fees shall cease to accrue on the unused amount of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a) and Section 2.12(d);
(b) the Commitment, Revolving Commitment Credit Exposure, and Revolving Exposure outstanding Term Loans of such Defaulting Lender shall not be included in determining whether the Required Lenders Lenders, Required Revolving Lenders, or any other requisite Required Term Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided provided, that any this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of all Lenders or all Lenders each Lender affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such that by its terms affects any Defaulting Lender in accordance with the terms hereofmore adversely than other affected Lenders;
(c) if any Swingline Exposure or LC Exposure exists at the time such Revolving Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the Nonnon-Defaulting Revolving Lenders in accordance with their respective Applicable Percentages (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph (c), the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated disregarding the Revolving Commitments of the Defaulting Lenders at such time) but only (x) to the extent that the sum of all Nonsuch reallocation does not, as to any non-Defaulting Lenders’ Revolving Exposures plus Lender, cause such non-Defaulting Revolving Lender’s Swingline Revolving Credit Exposure to exceed its Revolving Commitment and LC Exposure does not exceed (y) if the sum of all Non-Defaulting Lenders’ Revolving Commitmentsconditions set forth in Section 4.02 are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall shall, within one five (5) Business Day Days following notice by the Administrative Agent (A) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (B) secondAgent, cash collateralize for the benefit of the Issuing Banks the Bank that portion of such Defaulting Lender’s LC Exposure that has not been reallocated pursuant to clause (i) above in accordance with the procedures set forth in Section 2.05(i2.06(j) for so long as such LC Exposure is outstanding, provided that the Borrower shall be permitted to use Revolving Loans to post such cash collateral;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower shall not be required to pay participation any fees to such Defaulting Lender pursuant to Section 2.12(b2.12(c) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such the non-Defaulting Lender Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections Section 2.12(a) and 2.12(bSection 2.12(c) shall be adjusted to give effect to in accordance with such reallocationnon-Defaulting Lenders’ Applicable Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any the Issuing Bank or any other Lender hereunder, all participation facility fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.12(b2.12(c) with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) Bank until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lender Issuing Bank shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew amend or extend increase any Letter of Credit, unless in each case it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline LC Exposure or LC Exposure, as applicable, of such Defaulting Lender will be fully one hundred percent (100%) covered by the Revolving Commitments of the Nonnon-Defaulting Revolving Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 2.20(c), and participating interests in LC Exposure related to any such funded Swingline Loan newly issued or in any such issued, amended, reviewed or extended increased Letter of Credit will shall be allocated among the Nonnon-Defaulting Revolving Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein). In the event that If (xi) a Bankruptcy Event with respect to a Revolving Lender Parent shall have occurred occur following the date hereof and for so long as such Bankruptcy Event event shall continue or (yii) the Swingline Lender or any Issuing Bank has a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend creditcredit and such Lender is not contesting those funding obligations, the Swingline Lender Issuing Bank shall not be required to fund any Swingline Loan, and no Issuing Bank shall be required to issue, amend, renew amend or extend increase any Letter of Credit, unless the Swingline Lender or such Issuing Bank, as the case may be, Bank shall have entered into arrangements with the Borrower or such Revolving Lender Lender, satisfactory to the Swingline Lender or such Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the Borrower, Borrower and the Swingline Lender and each Issuing Bank each agree agrees in their sole discretion, that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender (a “Restored Lender”), then the Swingline Exposure and LC Exposure of the Revolving Lenders shall be reallocated in accordance with their Applicable Percentages readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Restored Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Restored Lender to hold such Loans in accordance with its Applicable Percentage (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph, the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated including the Revolving Commitment of such Restored Lender but disregarding the Revolving Commitments of the Defaulting Lenders at such time).
Appears in 1 contract
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unused amount of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a);
(b) the Revolving Commitment and Revolving Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided that any amendment, waiver or other modification requiring the consent of all Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereof;
(c) if any Swingline Exposure or LC Exposure exists at the time such Revolving Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the Non-Defaulting Lenders in accordance with their respective Applicable Percentages (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph (c), the percentage of the 84 Aggregate Revolving Commitment represented by such Lender’s Revolving Lend▇▇’▇ ▇evolving Commitment at the time of such reallocation calculated disregarding the Revolving Commitments of the Defaulting Lenders at such time) but only to the extent that such reallocation does not cause the sum Aggregate Revolving Exposure of all any Non-Defaulting Lenders’ Revolving Exposures plus Lender to exceed such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the sum of all Non-Defaulting Lenders’ Revolving CommitmentsLend▇▇’▇ ▇evolving Commitment. Subject to Section 9.19, no reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Lend▇▇ ▇▇▇ing become a Defaulting Lender, including any claim of a Non-Defaulting Lender as a result of such Non-Defaulting Lend▇▇’▇ ▇ncreased exposure following such reallocation;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent (A) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (B) second, cash collateralize for the benefit of the Issuing Banks the portion of such Defaulting Lender’s LC Exposure that has not been reallocated in accordance with the procedures set forth in Section 2.05(i) for so long as such LC Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower shall not be required to pay participation fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such Defaulting Lender is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(b) shall be adjusted to give effect to such reallocation; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all participation fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless in each case it is reasonably satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure or LC Exposure, as applicable, will be fully covered by the Revolving Commitments of the Non-Defaulting Lenders and/or cash collateral provided by the Borrower in accordance with Section 2.20(c), and participating interests in any such funded Swingline Loan or in any such issued, amended, reviewed or extended Letter of Credit will be allocated among the Non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein). In the event that (x) a Bankruptcy Event with respect to a Revolving Lender Parent shall have occurred following the date hereof and for so long as such Bankruptcy Event shall continue or (y) the Swingline Lender or any Issuing Bank has a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan, and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless the Swingline Lender or such Issuing Bank, as the case may be, shall have entered into arrangements with the Borrower or such Revolving Lender satisfactory to the Swingline Lender or such Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the Borrower, the Swingline Lender Borrower and each Issuing Bank each agree in writing that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender (a “Restored Lender”), then the Swingline Exposure and LC Exposure of the Revolving Lenders shall be reallocated in accordance with their Applicable Percentages and on such date such Restored Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Restored Lender to hold such Loans in accordance 85 with its Applicable Percentage (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph, the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Lend▇▇’▇ ▇evolving Commitment at the time of such reallocation calculated including the Revolving Commitment of such Restored Lender but disregarding the Revolving Commitments of the Defaulting Lenders at such time).
Appears in 1 contract
Sources: First Amendment (Costar Group, Inc.)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unused amount unfunded portion of the US Tranche Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a2.13(a);
(b) the Revolving US Tranche Commitment and US Tranche Revolving Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders (or any other requisite Lenders Required Revolving Lenders, as applicable) have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided provided, that any this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of all Lenders such Lender or all Lenders each Lender directly and adversely affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereofthereby;
(ci) if any Swingline Exposure or LC Exposure exists at the time such Revolving Lender becomes is a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the Non-Defaulting Lenders in accordance with their respective Applicable Percentages (with the term “Applicable Percentage” meaningLender, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph (c), the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated disregarding the Revolving Commitments of the Defaulting Lenders at such time) but only to the extent that the sum of all Non-Defaulting Lenders’ Revolving Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the sum of all Non-Defaulting Lenders’ Revolving Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, then the Borrower shall within one (1) Business Day following notice by the Administrative Agent (A) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (B) second, cash collateralize for the benefit of the Issuing Banks the portion of such Defaulting Lender’s LC Exposure that has not been reallocated in accordance with the procedures set forth in Section 2.05(i2.06(j) for so long as such LC Exposure is outstanding;
, and (iiiii) if after the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to the foregoing clause (ii) above), the Borrower shall not be required to pay participation any fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such Defaulting Lender is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(b) shall be adjusted to give effect to such reallocation; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all participation fees payable under Section 2.12(b2.13(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to during the Issuing Banks (and allocated among them ratably based on the amount of period such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, amend or renew or extend any Letter of Credit, Credit unless in each case it is reasonably satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure or LC Exposure, as applicable, cash collateral will be fully covered by the Revolving Commitments of the Non-Defaulting Lenders and/or cash collateral provided by the Borrower in accordance with Section 2.20(c), and participating interests in any such funded Swingline Loan or in any such issued, amended, reviewed or extended Letter of Credit will be allocated among the Non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein2.21(c). In the event that If (xi) a Bankruptcy Event with respect to a Revolving Lender Parent shall have occurred occur following the date hereof and for so long as such Bankruptcy Event event shall continue or (yii) the Swingline Lender or any Issuing Bank has a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender such Issuing Bank shall not be required to fund any Swingline Loan, and no Issuing Bank shall be required to issue, amend, renew issue or extend amend any Letter of Credit, unless the Swingline Lender or such Issuing Bank, as the case may be, Bank shall have entered into arrangements with the Borrower or such Revolving Lender Lender, satisfactory to the Swingline Lender or such Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the Borrower, the Swingline Lender and each Issuing Bank each agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender (a “Restored Lender”), then the Swingline Exposure and LC Exposure of the Revolving Lenders shall be reallocated in accordance with their Applicable Percentages and on such date such Restored Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Restored Lender to hold such Loans in accordance with its Applicable Percentage (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph, the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated including the Revolving Commitment of such Restored Lender but disregarding the Revolving Commitments of the Defaulting Lenders at such time).
Appears in 1 contract
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unused amount unfunded portion of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a2.09(a);
(b) the Revolving Commitment Commitments and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 9.02); , provided that any amendmentwaiver, waiver amendment or other modification requiring the consent of all Lenders or all each affected Lender which affects such Defaulting Lender disproportionately adversely relative to other affected Lenders affected thereby shall, except as otherwise provided in Section 9.02, shall require the consent of such Defaulting Lender in accordance with the terms hereofLender;
(c) if any Swingline Exposure or LC Exposure exists at the time such a Revolving Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and such LC Exposure of such Defaulting Lender shall be reallocated among the Nonnon-Defaulting Lenders in accordance with their respective Applicable Percentages (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph (c), the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated disregarding the Revolving Commitments of the Defaulting Lenders at such time) but only to the extent that (x) the sum of all Nonnon-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the sum total of all Nonnon-Defaulting Lenders’ Revolving CommitmentsCommitments and (y) the conditions set forth in Section 4.02 are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one three Business Day Days following notice by the Administrative Agent (A) firstAgent, prepay without prejudice to any rights or remedies of the portion of Borrower against such Defaulting Lender’s Swingline Exposure that has not been reallocated and (B) second, cash collateralize for the benefit of the Issuing Banks the portion of such Defaulting Lender’s LC Exposure that has not been reallocated (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.05(i2.22(k) for so long as such LC Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) aboveSection 2.17(c), the Borrower shall not be required to pay participation any fees to such Defaulting Lender pursuant to Section 2.12(b2.09(b) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such the non-Defaulting Lender Lenders is reallocated pursuant to clause (i) aboveSection 2.17(c), then the fees otherwise payable to the Lenders Defaulting Lender pursuant to Sections 2.12(a) and 2.12(bSection 2.09(b) shall be adjusted to give effect to allocated among the non-Defaulting Lenders in accordance with such reallocationnon-Defaulting Lenders’ Applicable Percentages of the applicable Revolving Facility; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized nor reallocated pursuant to clause (i) or (ii) aboveSection 2.17(c), then, without prejudice to any rights or remedies of any Issuing Bank or any other Revolving Lender hereunder, all participation commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.12(b2.09(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) Bank until and to the extent that such LC Exposure is reallocated cash collateralized and/or cash collateralized; andreallocated;
(d) so long as such any Revolving Lender is a Defaulting Lender, the Swingline Lender applicable Issuing Bank shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew amend or extend increase any Letter of Credit, unless in each case it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure or LC Exposure, as applicable, will be fully 100% covered by the Revolving Commitments of the Nonnon-Defaulting Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 2.20(c2.17(c), and participating interests in any such funded Swingline Loan newly issued or in any such issued, amended, reviewed or extended increased Letter of Credit will shall be allocated among the Nonnon-Defaulting Lenders in a manner consistent with Section 2.20(c)(i2.17(c)(i) (and such Defaulting Lender Lenders shall not participate therein). In ; and
(e) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.15(d) but excluding Section 2.16(b)) shall, in lieu of being distributed to such Defaulting Lender, be retained by the event that 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 (xi) a Bankruptcy Event with respect first, to a Revolving the payment of any amounts owing by such Defaulting Lender Parent shall have occurred following to the date hereof and for so long as Administrative Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Bankruptcy Event shall continue or (y) the Swingline Defaulting Lender or any to such Issuing Bank has a good faith belief that hereunder, (iii) third, if so determined by the Administrative Agent or requested by an Issuing Bank, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Revolving Lender has defaulted participating interest in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan, and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless (iv) fourth, to the Swingline funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (v) fifth, if so determined by the Administrative Agent and the Borrower, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders or an Issuing Bank as a result of any judgment of a court of competent jurisdiction obtained by any Lender or such Issuing BankBank against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, as (vii) seventh, to the case may be, shall have entered into arrangements with payment of any amounts owing to the Borrower or as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Revolving Defaulting Lender satisfactory as a result of such Defaulting Lender’s breach of its obligations under this Agreement, and (viii) eighth, to the Swingline such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such Issuing Bank, as payment is (x) a prepayment of the case may be, to defease principal amount of any risk to it Loans or reimbursement obligations in respect of LC Disbursements for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 4.02 are satisfied, such Lender hereunderpayment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Lender. In the event that the Administrative Agent, the Borrower, the Swingline Lender Borrower and each Issuing Bank each agree agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender (a “Restored Lender”), then the Swingline Exposure and LC Exposure of the Revolving Lenders shall be reallocated in accordance with their Applicable Percentages readjusted to reflect the inclusion of such Lender’s Revolving Commitment and on such date such Restored Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Restored Lender to hold such Loans in accordance with its Applicable Percentage (with the term “Applicable Percentage” meaning. Subject to Section 9.15, with respect to no reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender for purposes arising from that Lender having become a Defaulting Lender, including any claim of reallocations to be made pursuant to this paragraph, the percentage a non-Defaulting Lender as a result of the Aggregate Revolving Commitment represented by such non-Defaulting Lender’s Revolving Commitment at the time of increased exposure following such reallocation calculated including the Revolving Commitment of such Restored Lender but disregarding the Revolving Commitments of the Defaulting Lenders at such time)reallocation.
Appears in 1 contract
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees the Commitment Fee set forth in Section 2.3(a) shall cease to accrue on the unused amount of the Revolving Commitment of for such Defaulting Lender pursuant to Section 2.12(a);Lender.
(b) the Revolving Commitment and Revolving Exposure Extensions of Credit of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 9.0211.1); , provided that any amendmentwaiver, waiver amendment or other modification (i) requiring the consent of all Lenders or all each affected Lender which affects such Defaulting Lender disproportionately with respect to the other affected Lenders affected thereby shall, except as otherwise provided in Section 9.02, or (ii) that would increase or extend the term of the Commitment of such Defaulting Lender shall require the consent of such Defaulting Lender in accordance with the terms hereof;Lender.
(c) if any Swingline Exposure or LC Exposure exists L/C Obligations exist at the time such Revolving a Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender L/C Obligations shall be reallocated among the Nonnon-Defaulting Lenders in accordance with their respective Applicable Commitment Percentages (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph (c), the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated disregarding the Revolving Commitments of the Defaulting Lenders at such time) but only to the extent that the sum of all Nonnon-Defaulting Lenders’ Revolving Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure Extensions of Credit does not exceed the sum total of all Nonnon-Defaulting Lenders’ Revolving Commitments;; and
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the applicable Borrower shall within one Business Day following notice by the Administrative Agent Agent, (A) firstin the case of Unsecured Letters of Credit, prepay the portion of cash collateralize such Defaulting Lender’s Swingline Exposure that has not been reallocated and L/C Obligations (Bafter giving effect to any partial reallocation pursuant to clause (i) second, cash collateralize for the benefit of the Issuing Banks the portion of such Defaulting Lender’s LC Exposure that has not been reallocated above) in accordance with the procedures set forth in Section 2.05(i8 for so long as such L/C Obligations are outstanding or (B) in the case of Secured Letters of Credit, ensure that the Borrowing Base includes an amount of cash equal to or greater than the Defaulting Lender’s L/C Obligations (after giving effect to any partial reallocation pursuant to clause (i) above) for so long as such LC Exposure is L/C Obligations are outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure L/C Obligations pursuant to clause (ii) abovethis Section 2.17(c), the Borrower shall not be required to pay participation any fees to such Defaulting Lender pursuant to Section 2.12(b3.3(a) with respect to such portion of Defaulting Lender’s L/C Obligations during the period such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC Exposure is L/C Obligations are cash collateralized;
(iv) if any portion the L/C Obligations of the LC Exposure of such non-Defaulting Lender is Lenders are reallocated pursuant to clause (ithis Section 2.17(c) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(bSection 2.3(a)and Section 3.3(a) shall be adjusted to give effect to in accordance with such reallocationnon-Defaulting Lenders’ Commitment Percentages; andor
(v) if all or any portion of such Defaulting Lender’s LC Exposure is L/C Obligations are neither reallocated nor cash collateralized nor reallocated pursuant to clause (i) or (ii) abovethis Section 2.17(c), then, without prejudice to any rights or remedies of any Issuing Bank Lender or any other Lender hereunder, all participation letter of credit fees payable under Section 2.12(b) 3.3 with respect to such Defaulting Lender’s LC Exposure L/C Obligations shall be payable to the applicable Issuing Banks (and allocated among them ratably based on the amount of Lender until such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated L/C Obligations are cash collateralized and/or cash collateralized; andreallocated.
(d) so long as such Revolving any Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and no Applicable Issuing Bank Party shall be required to issue, amend, renew amend or extend increase any Letter of Credit, unless in each case it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure or LC Exposure, as applicable, will be fully 100% covered by the Revolving Commitments of the Nonnon-Defaulting Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 2.20(c2.17(c), and participating interests or Commitment Shares in any such funded Swingline Loan newly issued or in any such issued, amended, reviewed or extended increased Letter of Credit will shall be allocated among the Nonnon-Defaulting Lenders in a manner consistent with Section 2.20(c)(i2.17(c)(i) (and such Defaulting Lender Lenders shall not participate therein). In .
(e) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 11.7 but excluding Section 2.16) shall, in lieu of being distributed to such Defaulting Lender, be retained by the event that 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 (xi) a Bankruptcy Event with respect first, to a Revolving the payment of any amounts owing by such Defaulting Lender Parent shall have occurred following to the date hereof and Administrative Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to the Applicable Issuing Parties hereunder, (iii) third, if so determined by the Administrative Agent or requested by an Applicable Issuing Party, to be held in such account as cash collateral for so long as such Bankruptcy Event shall continue future funding obligations of the Defaulting Lender of any participating interest or (y) the Swingline Lender or any Issuing Bank has a good faith belief that any Revolving Lender has defaulted Commitment Share in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan, and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless (iv) fourth, to the Swingline funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (v) fifth, if so determined by the Administrative Agent and the Borrower, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders or an Issuing Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender or such Issuing BankLender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, as (vii) seventh, to the case may be, shall have entered into arrangements with payment of any amounts owing to the Borrower or as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Revolving Defaulting Lender satisfactory as a result of such Defaulting Lender’s breach of its obligations under this Agreement, and (viii) eighth, to the Swingline such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such Issuing Bank, as payment is (x) a prepayment of the case may be, to defease principal amount of any risk to it Loans or reimbursement obligations in respect of a payment made by an Issuing Lender pursuant to a Letter of Credit for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 5.2 are satisfied, such Lender hereunderpayment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Lender. In the event that the Administrative Agent, the Borrower, the Swingline Lender Borrower and each Issuing Bank each Lender agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender (a “Restored Lender”), then the Swingline Exposure and LC Exposure L/C Obligations of the Revolving Lenders shall be reallocated in accordance with their Applicable Percentages readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Restored Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Restored Lender to hold such Loans in accordance with its Applicable Percentage (with the term “Applicable Commitment Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph, the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated including the Revolving Commitment of such Restored Lender but disregarding the Revolving Commitments of the Defaulting Lenders at such time).
Appears in 1 contract
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unused amount unfunded portion of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a2.5(a);
(b) the Revolving Commitment and Revolving Exposure Extensions of Credit of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.02Section
10.1); provided that any this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of all Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereofLender;
(c) if any Swingline Exposure or LC L/C Exposure exists at the time such Revolving Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC L/C Exposure of such Defaulting Lender shall be reallocated among the Nonnon-Defaulting Lenders in accordance with their respective Applicable Revolving Percentages (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph (c), the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated disregarding the Revolving Commitments of the Defaulting Lenders at such time) but only to the extent that the sum of all Nonnon-Defaulting Lenders’ Revolving Exposures Extensions of Credit plus such Defaulting Lender’s Swingline Exposure and LC L/C Exposure does not exceed the sum total of all Nonnon-Defaulting Lenders’ Revolving Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall shall, within one two Business Day Days following notice by the Administrative Agent (Ax) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (By) second, cash collateralize for the benefit of the Issuing Banks Lender only the portion of Borrower’s obligations corresponding to such Defaulting Lender’s LC L/C Exposure that has not been reallocated (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.05(i) 8 for so long as such LC L/C Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC L/C Exposure pursuant to clause (ii) above, the Borrower shall not be required to pay participation any fees to such Defaulting Lender pursuant to Section 2.12(b3.3(a) with respect to such portion of Defaulting Lender’s L/C Exposure during the period such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC L/C Exposure is cash collateralized;
(iv) if any portion the L/C Exposure of the LC Exposure of such non-Defaulting Lender Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(aSection 2.5(a) and 2.12(bSection 3.3(a) shall be adjusted to give effect to in accordance with such reallocationnon-Defaulting Lenders’ Revolving Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC L/C Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any the Issuing Bank Lender or any other Lender hereunder, all participation fees payable under Section 2.12(b3.3(a) with respect to such Defaulting Lender’s LC L/C Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) Lender until and to the extent that such LC L/C Exposure is reallocated and/or cash collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and no the Issuing Bank Lender shall not be required to issue, amend, renew amend or extend increase any Letter of Credit, unless in each case it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline L/C Exposure or LC Exposure, as applicable, will be fully 100% covered by the Revolving Commitments of the Nonnon-Defaulting Lenders and/or cash collateral will be provided by the Borrower in the amount of such Defaulting Lender’s L/C Exposure in accordance with Section 2.20(c2.19(c), and participating interests in any such funded newly made Swingline Loan or in any such issued, amended, reviewed newly issued or extended increased Letter of Credit will shall be allocated among the Nonnon-Defaulting Lenders in a manner consistent with Section 2.20(c)(i2.19(c)(i) (and such Defaulting Lender shall not participate therein). In the event that (x) a Bankruptcy Event with respect to a Revolving Lender Parent shall have occurred following the date hereof and for so long as such Bankruptcy Event shall continue or (y) the Swingline Lender or any Issuing Bank has a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan, and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless the Swingline Lender or such Issuing Bank, as the case may be, shall have entered into arrangements with the Borrower or such Revolving Lender satisfactory to the Swingline Lender or such Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the Borrower, the Swingline Lender and each Issuing Bank each agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender (a “Restored Lender”), then the Swingline Exposure and LC Exposure of the Revolving Lenders shall be reallocated in accordance with their Applicable Percentages and on such date such Restored Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Restored Lender to hold such Loans in accordance with its Applicable Percentage (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph, the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated including the Revolving Commitment of such Restored Lender but disregarding the Revolving Commitments of the Defaulting Lenders at such time).
Appears in 1 contract
Sources: Credit Agreement (Air Lease Corp)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unused amount of the Revolving Facility Commitment of such Defaulting Lender pursuant to Section 2.12(a2.11(a);.
(b) the Revolving Facility Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.0210.02); provided, that, except as otherwise provided that any in Section 10.02, this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of all Lenders such Lender or all Lenders each Lender directly affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereofthereby;
(c) if If any Swingline Exposure or LC Exposure exists at the time such Revolving Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the Nonnon-Defaulting Lenders in accordance with their respective Applicable Percentages (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph (c), the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated disregarding the Revolving Commitments of the Defaulting Lenders at such time) but only to the extent that (A) the sum of all Nonnon-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the sum total of all Nonnon-Defaulting Lenders’ Facility Commitments, (B) each non-Defaulting Lender’s Revolving CommitmentsCredit Exposure does not exceed such non-Defaulting Lender’s Facility Commitment and (C) no Event of Default has occurred and is continuing;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower Company shall within one (1) Business Day following notice by the Administrative Agent (A) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (B) second, cash collateralize for the benefit of each relevant Issuing Bank only the Issuing Banks the portion of Borrowers’ obligations corresponding to such Defaulting Lender’s LC Exposure that has not been reallocated (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.05(i2.04(j) for so long as such LC Exposure is outstanding;
(iii) if the Borrower Company cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower Borrowers shall not be required to pay participation any fees to such Defaulting Lender pursuant to Section 2.12(b2.11(b) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such the non-Defaulting Lender Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(bSection 2.11(b) shall be adjusted to give effect to in accordance with such reallocationnon-Defaulting Lenders’ Applicable Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any the relevant Issuing Bank or any other Lender hereunder, all participation facility fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Facility Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.12(b2.11(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the such Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) Bank until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew amend or extend increase any Letter of Credit, unless in each case it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline LC Exposure or LC Exposure, as applicable, will be fully 100% covered by the Revolving Facility Commitments of the Nonnon-Defaulting Lenders and/or cash collateral will be provided by the Borrower Company in accordance with Section 2.20(c2.21(c), and participating interests in any such funded Swingline Loan newly issued or in any such issued, amended, reviewed or extended increased Letter of Credit will shall be allocated among the Nonnon-Defaulting Lenders in a manner consistent with Section 2.20(c)(i2.21(c)(i) (and such Defaulting Lender shall not participate therein). In the event that If (xi) a Bankruptcy Event with respect to a Revolving Lender Parent shall have occurred occur following the date hereof and for so long as such Bankruptcy Event event shall continue or (yii) the Swingline Lender or any Issuing Bank has a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan, and no Issuing Bank shall be required to issue, amend, renew amend or extend increase any Letter of Credit, unless the Swingline Lender or such relevant Issuing Bank, as the case may be, Bank shall have entered into arrangements with the Borrower Company or such Revolving Lender Lender, satisfactory to the Swingline Lender or such Issuing Bank, as the case may be, Bank to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the Borrower, the Swingline Lender Company and each Issuing Bank each agree agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender (a “Restored Lender”), then the Swingline Exposure and LC Exposure of the Revolving Lenders shall be reallocated in accordance with their Applicable Percentages readjusted to reflect the inclusion of such Lender’s Facility Commitment and on such date such Restored Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Restored Lender to hold such Loans in accordance with its Applicable Percentage (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph, the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated including the Revolving Commitment of such Restored Lender but disregarding the Revolving Commitments of the Defaulting Lenders at such time).
Appears in 1 contract
Sources: Credit Agreement (Moodys Corp /De/)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees Facility Fees shall cease to accrue pursuant to Section 2.11(a) on the unused amount portion of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a)in excess of the Revolving Credit Exposure of such Defaulting Lender;
(b) the Revolving Commitment Commitments, LC Exposure and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 9.02); , provided that any this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of all Lenders such Lender or all Lenders each Lender affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereofthereby;
(c) if any Swingline Exposure or LC Exposure exists at the time such Revolving a Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and such LC Exposure of such Defaulting Lender shall be reallocated among the Nonnon-Defaulting Lenders in accordance with their respective Applicable Percentages (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph (c), the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated disregarding the Revolving Commitments of the Defaulting Lenders at such time) but only (x) to the extent that the sum of all Nonsuch reallocation does not, as to any non-Defaulting Lenders’ Revolving Exposures plus Lender, cause such non-Defaulting Lender’s Swingline Revolving Credit Exposure to exceed its Commitment and LC Exposure does not exceed (y) the sum of all Non-Defaulting Lenders’ Revolving Commitmentsconditions set forth in Section 4.02 are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall shall, within one two Business Day Days following notice by the Administrative Agent (A) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (B) secondAgent, cash collateralize for the benefit of the Issuing Banks only the portion of Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure that has not been reallocated (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.05(i2.05(j) for so long as such LC Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower shall not be required to pay participation any fees to such Defaulting Lender pursuant to Section 2.12(b2.11(b) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such the non-Defaulting Lender Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(bSection 2.11(b) shall be adjusted to give effect to in accordance with such reallocationnon-Defaulting Lenders’ Applicable Percentages; andor
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized nor reallocated pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any the Issuing Bank Banks or any other Lender hereunder, all participation Facility Fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.12(b2.11(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated cash collateralized and/or cash collateralizedreallocated; and
(d) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew amend or extend increase any Letter of Credit, unless in each case it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline LC Exposure or LC Exposure, as applicable, will be fully 100% covered by the Revolving Commitments of the Nonnon-Defaulting Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 2.20(c2.21(c), and participating interests in any such funded Swingline Loan newly issued or in any such issued, amended, reviewed or extended increased Letter of Credit will shall be allocated among the Nonnon-Defaulting Lenders in a manner consistent with Section 2.20(c)(i2.21(c)(i) (and such Defaulting Lender shall not participate therein). In the event that If (xi) a Bankruptcy Event with respect to a Revolving Parent of any Lender Parent shall have occurred occur following the date hereof and for so long as such Bankruptcy Event event shall continue or (yii) the Swingline Lender or any Issuing Bank has a reasonable good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender then such Issuing Bank shall not be required to fund any Swingline Loan, and no Issuing Bank shall be required to issue, amend, renew amend or extend increase any Letter of Credit, unless the Swingline Lender or such Issuing Bank, as the case may be, Bank shall have entered into arrangements with the Borrower or such Revolving Lender Lender, satisfactory to the Swingline Lender or such Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the Borrower, the Swingline Lender Borrower and each Issuing Bank each agree agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender (a “Restored Lender”), then the Swingline Exposure and LC Exposure of the Revolving Lenders shall be reallocated in accordance with their Applicable Percentages readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Restored Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Restored Lender to hold such Loans in accordance with its Applicable Percentage (as determined prior to such Lender becoming a Defaulted Lender but after giving effect to any Commitment reductions or increases in accordance with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph, the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated including the Revolving Commitment of such Restored Lender but disregarding the Revolving Commitments of the Defaulting Lenders at such timeterms hereof).
Appears in 1 contract
Sources: Credit Agreement (KEMPER Corp)
Defaulting Lenders. Notwithstanding any provision of this Credit Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unused amount unfunded portion of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a3.4(a);
(b) the Revolving Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 9.0211.6); provided that any amendment, waiver or other modification requiring the consent of all Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereof;
(c) if any Swingline Exposure or LC Exposure exists L/C Obligations exist at the time such Revolving a Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender L/C Obligations shall be reallocated among the Nonnon-Defaulting Lenders in accordance with their respective Applicable Percentages (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph (c), the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated disregarding the Revolving Commitments of the Defaulting Lenders at such time) Pro Rata Share but only to the extent that (x) the sum of all Nonnon-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure L/C Obligations does not exceed the sum total of all Nonnon-Defaulting Lenders’ Revolving Commitments;Commitments and (y) the conditions set forth in Section 5.1 are satisfied at such time; and
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent (A) first, prepay the portion of cash collateralize such Defaulting Lender’s Swingline Exposure that has not been reallocated and L/C Obligations (Bafter giving effect to any partial reallocation pursuant to clause (i) second, cash collateralize for the benefit of the Issuing Banks the portion of such Defaulting Lender’s LC Exposure that has not been reallocated above) in accordance with the procedures set forth in Section 2.05(i2.2(g) for so long as such LC Exposure L/C Obligations is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure L/C Obligations pursuant to clause (ii) aboveSection 3.16(c)(ii), the Borrower shall not be required to pay participation any fees to such Defaulting Lender pursuant to Section 2.12(b3.4(c) with respect to such portion of Defaulting Lender’s L/C Obligations during the period such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC Exposure L/C Obligations is cash collateralized;
(iv) if any portion the L/C Obligations of the LC Exposure of such non-Defaulting Lender is Lenders are reallocated pursuant to clause (i) abovethis Section 3.16(c), then the fees payable to the Lenders pursuant to Sections 2.12(aSection 3.4(a) and 2.12(bSection 3.4(c) shall be adjusted to give effect to in accordance with such reallocationnon-Defaulting Lenders’ Pro Rata Shares; andor
(v) if all or any portion of such Defaulting Lender’s LC Exposure is L/C Obligations are neither reallocated nor cash collateralized nor reallocated pursuant to clause (i) or (ii) abovethis Section 3.16(c), then, without prejudice to any rights or remedies of any Issuing Bank the L/C Issuer or any other Lender hereunder, all participation letter of credit fees payable under Section 2.12(b3.4(c) with respect to such Defaulting Lender’s LC Exposure L/C Obligations shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of L/C Issuer until such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated L/C Obligations are cash collateralized and/or cash collateralizedreallocated; and
(d) so long as such Revolving any Lender is a Defaulting Lender, the Swingline Lender L/C Issuer shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew amend or extend increase any Letter of Credit, unless in each case it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure or LC Exposure, as applicable, will be fully 100% covered by the Revolving Commitments of the Nonnon-Defaulting Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 2.20(c3.16(c), and participating interests in any such funded Swingline Loan newly issued or in any such issued, amended, reviewed or extended increased Letter of Credit will shall be allocated among the Nonnon-Defaulting Lenders in a manner consistent with Section 2.20(c)(i3.16(c)(i) (and such Defaulting Lender Lenders shall not participate therein). In the event that (x) a Bankruptcy Event with respect to a Revolving Lender Parent shall have occurred following the date hereof and for so long as such Bankruptcy Event shall continue or (y) the Swingline Lender or any Issuing Bank has a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan, and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless the Swingline Lender or such Issuing Bank, as the case may be, shall have entered into arrangements with the Borrower or such Revolving Lender satisfactory to the Swingline Lender or such Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the Borrower, Borrower and the Swingline Lender and L/C Issuer each Issuing Bank each agree agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender (a “Restored Lender”), then the Swingline Exposure and LC Exposure L/C Obligations of the Revolving Lenders shall be reallocated in accordance with their Applicable Percentages readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Restored Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Restored Lender to hold such Loans in accordance with its Applicable Percentage (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph, the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated including the Revolving Commitment of such Restored Lender but disregarding the Revolving Commitments of the Defaulting Lenders at such time)Pro Rata Share.
Appears in 1 contract
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees the Facility Fee shall cease to accrue on the unused amount of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a);
(b) the Commitment, Revolving Commitment and Revolving Exposure Credit Exposure, and, if applicable, Competitive Loans of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.0210.02); provided that any amendment, waiver or other modification requiring the consent of all Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 9.02, shall require the consent of such Defaulting Lender in accordance with the terms hereof;
(c) if any Swingline Exposure or LC Exposure exists at the time such Revolving Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure (other than any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.05(c) and, in the case of any Defaulting Lender that is a Swingline Lender, other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) and LC Exposure of such Defaulting Lender (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.06(d) and 2.06(e)) shall be reallocated among the Non-Defaulting Lenders in accordance with their respective Applicable Percentages (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph (c), the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated disregarding the Revolving Commitments of the Defaulting Lenders at such time) but only to the extent that (A) the sum of all Non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure (in each case, excluding the portion thereof referred to above) does not exceed the sum of all Non-Defaulting Lenders’ Commitments and (B) such reallocation does not result in the Revolving CommitmentsCredit Exposure of any Non-Defaulting Lender exceeding such Non-Defaulting Lender’s Commitment;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower Borrowers shall within one Business Day following notice by the Administrative Agent (A) first, prepay the portion of such Defaulting Lender’s Swingline Exposure (other than any portion thereof referred to in the parenthetical in such clause (i)) that has not been reallocated and (B) second, cash collateralize for the benefit of the Issuing Banks the portion of such Defaulting Lender’s LC Exposure (other than any portion thereof referred to in the parenthetical in such clause (i)) that has not been reallocated in accordance with the procedures set forth in Section 2.05(i2.06(j) for so long as such LC Exposure is outstanding;
(iii) if the Borrower Borrowers cash collateralizes collateralize any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower Borrowers shall not be required to pay participation fees LC Participation Fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such Defaulting Lender is reallocated pursuant to clause (i) above, then the fees LC Participation Fees payable to the Lenders pursuant to Sections 2.12(a) and Section 2.12(b) shall be adjusted to give effect to such reallocation;
(v) if all or any portion of such Defaulting Lender’s Swingline Exposure is neither reallocated nor reduced pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Swingline Lender or any other Lender hereunder, all Facility Fees that otherwise would have been payable pursuant to Section 2.12(a) to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment utilized by such Swingline Exposure) shall be payable to the Swingline Lenders (and allocated among them ratably based on the amount of such Defaulting Lender’s Swingline Exposure attributable to Swingline Loans made by each Swingline Lender) until and to the extent that such Swingline Exposure is reallocated and/or reduced to zero; and
(vvi) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all participation fees Facility Fees that otherwise would have been payable under pursuant to Section 2.12(a) to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment utilized by such LC Exposure) and LC Participation Fees payable pursuant to Section 2.12(b) to such Defaulting Lender with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender, the no Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless unless, in each case it is satisfied that case, the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure or LC Exposure, as applicable, will be fully covered by the Revolving Commitments of the Non-Defaulting Lenders and/or cash collateral provided by the Borrower Borrowers in accordance with Section 2.20(c2.21(c), and participating interests in any such funded Swingline Loan or in any such issued, amended, reviewed or extended Letter of Credit will be allocated among the Non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i2.21(c) (and such Defaulting Lender shall not participate therein). In the event that (x) a Bankruptcy Event with respect to a Revolving Lender Parent shall have occurred following the date hereof and for so long as such Bankruptcy Event shall continue or (y) the Swingline Lender or any Issuing Bank has a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan, and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless the Swingline Lender or such Issuing Bank, as the case may be, shall have entered into arrangements with the Borrower or such Revolving Lender satisfactory to the Swingline Lender or such Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the BorrowerCompany, the Swingline Lender and each Issuing Bank and each Swingline Lender each agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender (a “Restored Lender”), then the Swingline Exposure and LC Exposure of the Revolving Lenders shall be reallocated in accordance with their Applicable Percentages readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Restored Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Restored Lender to hold such Loans in accordance with its Applicable Percentage (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph, the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated including the Revolving Commitment of such Restored Lender but disregarding the Revolving Commitments of the Defaulting Lenders at such time).
Appears in 1 contract
Sources: Credit Agreement (Hess Corp)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unused amount unfunded portion of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a)3.3.1;
(b) in the Revolving Commitment and Revolving Exposure of event that such Defaulting Lender shall not fail to respond to any request for any waiver, consent, amendment or modification requested hereunder within twenty (20) days of written request from the Administrative Agent, such Defaulting Lender shall be included in deemed to have consented or agreed to such requested waiver, consent, amendment or modification, as the case may be, for purposes of determining whether the Required Lenders or any other requisite all Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 9.0210.1); provided that any amendment, waiver or other modification requiring the consent of all Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereof;
(c) if any Swingline Exposure or LC Exposure exists Letter of Credit Outstandings exist at the time such Revolving a Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure such Letter of Credit Outstandings of such Defaulting Lender shall be reallocated among the Non-Defaulting Lenders in accordance with their respective Applicable Percentages (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph (c), the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated disregarding the Revolving Commitments of the Defaulting Lenders at such time) but only to the extent that as a result thereof (x) the sum of all Non-Defaulting Lenders’ Revolving Exposures Credit Exposure plus such Defaulting Lender’s Swingline Exposure and LC Exposure does Letter of Credit Outstandings would not exceed an amount equal to the sum of all Non-Defaulting Lenders’ Revolving Commitments;Percentage of the lesser of (A) the existing Loan Commitment Amount or (B) the Borrowing Base then in effect, (y) the sum of each Non-Defaulting Lender’s Credit Exposure plus such Non-Defaulting Lender’s share under this clause (i) of such Defaulting Lender’s Letter of Credit Outstandings would not exceed an amount equal to such Non-Defaulting Lender’s Percentage of the lesser of (A) the existing Loan Commitment Amount or (B) the Borrowing Base then in effect and (z) the conditions set forth in Section 5.2 are satisfied at such time; and
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent (A) first, prepay the portion of Cash Collateralize such Defaulting Lender’s Swingline Exposure that has not been reallocated and Letter of Credit Outstandings (Bafter giving effect to any partial reallocation pursuant to clause (i) second, cash collateralize for the benefit of the Issuing Banks the portion of such Defaulting Lender’s LC Exposure that has not been reallocated above) in accordance with the procedures set forth in Section 2.05(i2.6.4(b) for so long as such LC Exposure is Letter of Credit Outstandings are outstanding;; and
(iii) if the Borrower cash collateralizes Cash Collateralizes any portion of such Defaulting Lender’s LC Exposure Letter of Credit Outstandings pursuant to clause (ii) abovethis Section 2.10(c), the Borrower shall not be required to pay participation any fees to in respect of the interest of such Defaulting Lender pursuant to Section 2.12(b) 3.3.4 with respect to such portion Defaulting Lender’s Letter of Credit Outstandings during the period such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC Exposure is cash collateralized;Letter of Credit Outstandings are Cash Collateralized; and
(iv) if any portion the Letter of Credit Outstandings of the LC Exposure of such Non-Defaulting Lender is Lenders are reallocated pursuant to clause (i) abovethis Section 2.10(c), then the fees payable to the Lenders pursuant to Sections 2.12(a) Section 3.3.1 and 2.12(b) Section 3.3.4 shall be adjusted to give effect to such reallocation; and
(v) if all or any portion of reallocations in accordance with such Non-Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all participation fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralized; andLenders’ Percentages;
(d) so long as such Revolving any Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Bank Issuer shall be required to issue, amend, renew amend or extend increase any Letter of Credit, unless in each case it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure or LC Exposure, as applicable, will be fully 100% covered by the Revolving Commitments of the Non-Defaulting Lenders and/or cash collateral provided by the Borrower Cash Collateralized in accordance with this Section 2.20(c2.10(c) (and, if applicable, Section 2.6.4), and participating interests in any such funded Swingline Loan newly issued or in any such issued, amended, reviewed or extended increased Letter of Credit will shall be allocated among the Non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i2.10(c)(i) (and such Defaulting Lender Lenders shall not participate therein). In ; and
(e) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 4.8) shall, in lieu of being distributed to such Defaulting Lender, subject to any applicable requirements of law, be applied (i) first, to the event that payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder, (xii) a Bankruptcy Event with respect second, pro rata, to a Revolving the payment of any amounts then owing by such Defaulting Lender Parent shall have occurred following the date hereof to any Lender, Issuer or Swing Line Lender hereunder, and for so long as (iii) third, to such Bankruptcy Event shall continue or (y) the Swingline Defaulting Lender or any Issuing Bank has as otherwise directed by a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan, and no Issuing Bank shall be required to issue, amend, renew or extend any Letter court of Credit, unless the Swingline Lender or such Issuing Bank, as the case may be, shall have entered into arrangements with the Borrower or such Revolving Lender satisfactory to the Swingline Lender or such Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereundercompetent jurisdiction. In the event that the Administrative Agent, the Borrower, the Swingline Swing Line Lender and the Issuers each Issuing Bank each agree agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender (a “Restored Lender”), then the Swingline Exposure and LC Credit Exposure of the Revolving Lenders shall be readjusted and reallocated in accordance with their Applicable Percentages to reflect the inclusion of such Lender’s Commitment and on such date such Restored Lender shall purchase at par such of the Revolving Loans and participations in Letters of Credit of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Restored Lender to hold such Loans and participations in Letters of Credit in accordance with its Applicable applicable Percentage (with after giving effect to such reallocation; provided that notwithstanding the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraphforegoing, the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated including the Revolving Commitment of such Restored Lender but disregarding the Revolving Commitments of the Defaulting Lenders at such time)Borrower must comply with Section 2.6.4.
Appears in 1 contract
Sources: First Lien Credit Agreement (Energy Xxi (Bermuda) LTD)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees the Facility Fees, Ticking Fees, Participation Fees and Fronting Fees shall cease to accrue on the unused amount Commitments, Loans and/or Letters of the Revolving Commitment Credit (or participations therein) of such Defaulting Lender pursuant to Section 2.12(a)Lender;
(b) the Revolving Commitment Commitments and Revolving the Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.02)Document; provided that any amendment, waiver or other modification requiring the consent of all Lenders or all Lenders adversely affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereof;
(c) If the Borrower, the Issuing Banks and the Administrative Agent agree in writing that a Lender is no longer a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein, that Lender will, to the extent applicable, purchase at par that portion of outstanding Loans and LC Exposure of the other Lenders or take such other actions as the Administrative Agent may determine to be necessary to cause the Loans and LC Exposure to be held pro rata by the Lenders in accordance with their respective Pro Rata Percentages and reimburse each such Lender for any costs of the type described in Section 2.16 incurred by any Lender as a result of such purchase, whereupon such Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while that ▇▇▇▇▇▇ was a Defaulting Lender; and
(d) if any Swingline Exposure or LC Exposure exists at the time such Revolving a Lender becomes a Defaulting Lender then:
(i1) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the Nonnon-Defaulting Lenders in accordance with their respective Applicable Percentages Pro Rata Percentages, (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph (c), the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated disregarding the Revolving Commitments of the Defaulting Lenders at such timex) but only to the extent that the sum of all Nonnon-Defaulting Lenders’ Revolving Exposures Credit Exposure plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the sum total of all Nonnon-Defaulting Lenders’ Revolving CommitmentsCommitments and (y) only to the extent that no Event of Default shall have occurred and be continuing as of the date the applicable Lender became a Defaulting Lender;
(ii2) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one three Business Day Days following notice by the Administrative Agent (A) firstcash collateralize, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (B) second, cash collateralize for the benefit of the Issuing Banks Banks, the portion of Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure that has not been reallocated (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.05(i2.20(j) for so long as such LC Exposure is outstanding;
(iii3) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower or the Administrative Agent shall not be required to pay participation any fees to such Defaulting Lender pursuant to Section 2.12(b2.09(e) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv4) if any portion of the LC Exposure of such the non-Defaulting Lender Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a2.09(a) and 2.12(b) or 2.09(e), as applicable, shall be adjusted to give effect to in accordance with such reallocationnon-Defaulting Lenders’ Pro Rata Percentages; and
(v5) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all participation letter of credit fees payable under Section 2.12(b2.09(e) with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable entitled to Letters of Credit issued by each Issuing Bank) reimbursement until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and;
(de) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lender Issuing Banks shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew issue or extend increase any Letter of Credit, unless in each the Applicable Issuing Bank, as the case it may be, is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure or LC Exposure, as applicable, will be fully 100% covered by the Revolving Commitments of the Nonnon-Defaulting Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 2.20(c2.19(c), and participating interests in any such funded Swingline Loan newly issued or in any such issued, amended, reviewed or extended increased Letter of Credit will shall be allocated among the Nonnon-Defaulting Lenders in a manner consistent with Section 2.20(c)(i2.19(c)(1) (and such Defaulting Lender shall not participate therein). In the event that ; and
(xf) a Bankruptcy Event with respect to a Revolving Lender Parent shall have occurred following the date hereof and for so long as such Bankruptcy Event Lender is a Defaulting Lender, any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.14) shall, in lieu of being distributed to such Defaulting Lender, be retained by the Administrative Agent in a segregated account (for the avoidance of doubt, it is noted that any amounts retained pursuant to this Section 2.19(f) shall continue for all other purposes be treated as having been paid to such Defaulting Lender) and, subject to any applicable requirements of law and the proviso at the end of this Section 2.19(f), be applied at such time or times as may be determined by the Administrative Agent (yi) first, to the Swingline payment of any amounts owing by such Defaulting Lender or to the Administrative Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to any Issuing Bank has a good faith belief that hereunder, (iii) third, if the Administrative Agent so determines or is reasonably requested by an Issuing Bank, held in such account as cash collateral for future funding obligations of the Defaulting Lender in respect of any Revolving Lender has defaulted existing or future participating interest in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan, and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless (iv) fourth, to the Swingline funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (v) fifth, if the Administrative Agent or the Borrower (with the consent of the Administrative Agent) so determines, held in such account as cash collateral for future funding obligations of the Defaulting Lender in respect of any Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders or any Issuing Bank as a result of any judgment of a court of competent jurisdiction obtained by any Lender or such Issuing BankBank against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, (vii) seventh, so long as no Event of Default has occurred and is continuing, to the case may be, shall have entered into arrangements with payment of any amounts owing to the Borrower or as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Revolving Defaulting Lender satisfactory as a result of such Defaulting Lender’s breach of its obligations under this Agreement, and (viii) eighth, to the Swingline such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such Issuing Bank, as payment is a payment of the case may be, to defease principal amount of any risk to it Loans or reimbursement obligations in respect of LC Disbursements which such Defaulting Lender hereunderhas not fully funded its participation obligations and (y) made at a time when the conditions set forth in Section 4.02 are satisfied, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Lender. In The Borrower may terminate the event unused amount of the Commitment of any Lender that is a Defaulting Lender upon not less than two Business Days’ prior notice to the Administrative Agent (which shall promptly notify the Lenders thereof); 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 the Borrower, the Administrative Agent, any Issuing Bank or any Lender may have against such Defaulting Lender. The rights and remedies against, and with respect to, a Defaulting Lender under this Section are in addition to, and cumulative and not in limitation of, all other rights and remedies that the Administrative Agent, any Lender or the BorrowerBorrower may at any time have against, the Swingline Lender and each Issuing Bank each agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender (a “Restored Lender”), then the Swingline Exposure and LC Exposure of the Revolving Lenders shall be reallocated in accordance with their Applicable Percentages and on such date such Restored Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Restored Lender to hold such Loans in accordance with its Applicable Percentage (with the term “Applicable Percentage” meaning, or with respect to any Lender for purposes of reallocations to be made pursuant to this paragraphto, the percentage of the Aggregate Revolving Commitment represented by such Defaulting Lender’s Revolving Commitment at the time of such reallocation calculated including the Revolving Commitment of such Restored Lender but disregarding the Revolving Commitments of the Defaulting Lenders at such time).
Appears in 1 contract
Defaulting Lenders. Notwithstanding any provision of this Agreement anything to the contrarycontrary contained in this Agreement, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unused amount of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a);
(b) the Revolving Commitment and Revolving Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided that any amendment, waiver or other modification requiring the consent of all Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereof;
(c) if any Swingline Exposure or LC Exposure exists at the time such Revolving Lender becomes a Defaulting Lender then:
(ia) Ssuch Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in the definition of “Required Lenders” and, “Required Revolving Lenders” and “Required Term Lenders”;
(b) all or obligations of any part of the Swingline Exposure and LC Exposure of such Defaulting Revolving Lender to purchase participations in or otherwise refinance or support such Swing Loans and Letters of Credit shall be reallocated among the Nonnon-Defaulting Revolving Lenders in accordance with their respective Applicable Revolver Percentages (with the term “Applicable Percentage” meaningthereof, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph (c), the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated disregarding the Revolving Commitments of the Defaulting Lenders at such time) but only to the extent that (i) the sum of the non-Defaulting Revolving Lenders’ Revolver Percentages of the aggregate outstanding amount of all NonRevolving Loans and all L/C Obligations do not exceed the total of all non-Defaulting Lenders’ Revolving Exposures plus Credit Commitments and (ii) no non-Defaulting Revolving Lender’s Revolving Loans and L/C Obligations exceeds such Revolving Lender’s Revolving Credit Commitments; provided that no reallocation under this clause (b) shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Lender having become a Defaulting Lender, including any claim of a Non-Defaulting Lender as a result of such Non-Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the sum of all Non-Defaulting Lenders’ Revolving Commitmentsincreased exposure following such reallocation.;
(iic) if the reallocation described in clause (ib) above cannot, or can only partially, be effected, and the Administrative Agent shall not have sufficient cash collateral pursuant to Section 1.17(e) to secure the obligations of such Lender the Borrower shall shall, within one three (3) Business Day Days following written notice by the Administrative Agent Agent, at the Borrower’s option, (Ai) firstin the case of any Swing Loans, prepay any outstanding Swing Loans to the portion extent the obligations of the applicable Defaulting Lender to purchase participations in or otherwise refinance or support Swing Loans have not been reallocated pursuant to clause (b) above, (ii) cash collateralize such Defaulting Lender’s Swingline Exposure that has not been reallocated and (B) second, cash collateralize for the benefit pro rata share of the Issuing Banks the portion obligations to purchase participations in or otherwise refinance or support Letters of such Defaulting Lender’s LC Exposure that has not been reallocated in accordance with the procedures set forth in Section 2.05(iCredit (after giving effect to any partial reallocation pursuant to clause (b) above) for so long as such LC Exposure is outstandingobligations are outstanding or (iii) make other arrangements reasonably satisfactory to the Administrative Agent to protect the L/C Issuer or the Swing Line Lender, as the case may be, from the risk of non-payment by such Defaulting Lender;
(iiid) if the Borrower cash collateralizes any portion obligations of such the applicable Defaulting Lender’s LC Exposure Revolving Lender to purchase Participating Interests in or otherwise refinance or support Letters of Credit are reallocated among the Non-Defaulting Lenders pursuant to clause (ii) above, the Borrower shall not be required to pay participation fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such Defaulting Lender is reallocated pursuant to clause (ib) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(bSection 2.1(b) shall be adjusted in accordance with such non-Defaulting Revolving Lender’s Revolver Percentages;
(e) any payment of principal, interest, fees, indemnity payments or other amounts received by the Administrative Agent for the account of such Defaulting Lender under the Loan Documents (whether voluntary or mandatory, at maturity, pursuant to give effect Section 9 or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 13.16 shall be applied as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the payment, on a pro rata basis, of any amounts owing by such Defaulting Lender to any L/C Issuer or Swing Line Lender hereunder; third, to cash collateralize the L/C Issuer’s exposure and Swing Line Lender’s exposure with respect to such reallocationDefaulting Lender in accordance with Section 1.17(c); and
fourth, as the Borrower may request (vso long as no Default or Event of Default exists), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement; 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 (x) if all satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) cash collateralize the L/C Issuer’s and the Swing Line Lender’s future exposure with respect to such Defaulting Lender with respect to future Letters of Credit issued and Swing Loans, as applicable, under this Agreement; sixth, to the payment of any amounts owing to the Lenders, any L/C Issuer or Swing Line Lender as a result of any portion judgment of a court of competent jurisdiction obtained by any Lender, any L/C Issuer or Swing Line Lender against such Defaulting Lender as a result of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default exists, to clause (i) or (ii) above, then, without prejudice to any rights or remedies the payment of any Issuing Bank or amounts owing to the Borrower as a result of any other Lender hereunder, all participation fees payable under Section 2.12(b) with respect to judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender’s LC Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount Lender as a result of such Defaulting Lender’s LC Exposure attributable breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans or Reimbursement Obligations in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 7.1 were satisfied and waived, such payment shall be applied solely to pay the Loans of, and Reimbursement Obligations with respect to Letters of Credit issued by each Issuing Bank) until and owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the extent payment of any Loans of, or Reimbursement Obligations with respect to Letters of Credit owed to, such Defaulting Lender until such time as all Loans and funded and unfunded Participating Interests in Letters of Credit and Swing Loans are held by the Lenders pro rata in accordance with the applicable Commitments without giving effect to Section 1.17(b);
(f) any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 1.17 shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto;
(g) no such Defaulting Lender shall be entitled to receive any fee pursuant to Section 2 for any period during which that Lender is a Defaulting Lender (and no fees shall accrue for the account of such Defaulting Lender during the period that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless in each case it is satisfied ); provided that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure or LC Exposure, as applicable, will be fully covered by the Revolving Commitments of the Non-Defaulting Lenders and/or cash collateral provided by the Borrower in accordance with Section 2.20(c), and participating interests in any such funded Swingline Loan or in any such issued, amended, reviewed or extended Letter of Credit will be allocated among the Non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein). In the event be entitled to receive fees pursuant to Section 2.1(a) and (b) for any period during which that (x) Lender is a Bankruptcy Event with respect to a Revolving Defaulting Lender Parent shall have occurred following the date hereof and for so long as such Bankruptcy Event shall continue or (y) the Swingline Lender or any Issuing Bank has a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan, and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless the Swingline Lender or such Issuing Bank, as the case may be, shall have entered into arrangements with the Borrower or such Revolving Lender satisfactory only to the Swingline Lender or such Issuing Bank, as extent allocable to its Revolver Percentage of the case may be, to defease any risk to stated amount of Letters of Credit for which it has provided cash collateral in respect of such Lender hereunder. In thereof; and
(h) if the event that Borrower, the Administrative Agent, Swing Line Lender and the BorrowerL/C Issuer agree in writing that a Lender is no longer a Defaulting Lender, the Swingline 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 (which may include arrangements with respect to cash collateral), that Lender will, to the extent applicable, purchase at par that portion of outstanding Loans of the other Lenders or take such other actions as the Administrative Agent may determine to be necessary to cause the Loans and each Issuing Bank each agree that funded and unfunded participations in Letters of Credit and Swing Loans to be held on a Defaulting Lender has adequately remedied all matters that caused pro rata basis by the Lenders in accordance with their Revolver Percentages (without giving effect to Section 1.17(b)), whereupon such Lender will cease to be a Defaulting Lender (a “Restored Lender”), then the Swingline Exposure and LC Exposure of the Revolving Lenders shall ; provided that no adjustments will be reallocated in accordance with their Applicable Percentages and on such date such Restored Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Restored Lender to hold such Loans in accordance with its Applicable Percentage (with the term “Applicable Percentage” meaning, made retroactively with respect to any Lender for purposes of reallocations to be fees accrued or payments made pursuant to this paragraph, the percentage by or on behalf of the Aggregate Revolving Commitment represented Borrower while that Lender was a Defaulting Lender; and ^provided, further, that except to the extent otherwise expressly agreed by such the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lenders’ having been a Defaulting Lender’s Revolving Commitment at the time of such reallocation calculated including the Revolving Commitment of such Restored Lender but disregarding the Revolving Commitments of the Defaulting Lenders at such time).
Appears in 1 contract
Sources: Credit Agreement (Dave & Buster's Entertainment, Inc.)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unused amount unfunded portion of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a2.10(a);
(b) the Revolving Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided, that, except as otherwise provided that any in Section 9.02, this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of all Lenders such Lender or all Lenders each Lender directly affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereofthereby;
(c) if any Swingline Exposure or LC Exposure exists at the time such Revolving Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure (other than any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(d) or (e)) of such Defaulting Lender shall be reallocated (effective as of the date such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders that are Revolving Lenders in accordance with their respective Applicable Percentages (with for the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph (c)such reallocation, the percentage of the Aggregate Revolving Commitment represented by such Defaulting Lender’s Revolving Commitment at shall be disregarded in determining the time of such reallocation calculated disregarding the Revolving Commitments of the non-Defaulting Lenders at such time) Lenders’ respective Applicable Percentages), but only to the extent that (A) the sum of all Nonnon-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the sum total of all Nonnon-Defaulting Lenders’ Revolving Commitments, (B) after giving effect to any such reallocation, no non-Defaulting Lender’s Revolving Credit Exposure shall exceed such non-Defaulting Lender’s Revolving Commitment and (C) no Default or Event of Default has occurred and is continuing at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall shall, within one three (3) Business Day Days following written notice by the Administrative Agent (A) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (B) secondAgent, cash collateralize collateralize, for the benefit of the applicable Issuing Banks Banks, the portion of Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure that has not been reallocated (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.05(i2.04(j) for so long as such Defaulting Lender’s LC Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower shall not be required to pay any participation fees to such Defaulting Lender pursuant to Section 2.12(b2.10(b) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such the non-Defaulting Lender Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Revolving Lenders pursuant to Sections 2.12(aSection 2.10(a) and 2.12(bSection 2.10(b) shall be adjusted to give in accordance with such non-Defaulting Lenders’ Applicable Percentages after giving effect to such reallocation; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Revolving Lender hereunder, all participation fees payable under Section 2.12(b2.10(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Banks (and allocated among them Banks, ratably based on the amount portion of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each such Issuing Bank) , until and to the extent that such LC Exposure is reallocated and/or cash collateralizedcollateralized pursuant to clause (i) or (ii) above; and
(d) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew amend or extend increase any Letter of Credit, unless in each case it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline LC Exposure or LC Exposure, as applicable, will be fully 100% covered by the Revolving Commitments of the Nonnon-Defaulting Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 2.20(c2.18(c), and participating interests in any such funded Swingline Loan newly issued or in any such issued, amended, reviewed or extended increased Letter of Credit will shall be allocated among the Nonnon-Defaulting Lenders in a manner consistent with Section 2.20(c)(i2.18(c)(i) (and such Defaulting Lender shall not participate therein). In the event that .
(xi) a Bankruptcy Event or a Bail-In Action with respect to a Revolving Lender Parent shall have occurred occur following the date hereof and for so long as such Bankruptcy Event event shall continue or (yii) the Swingline Lender or any Issuing Bank has a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan, and no Issuing Bank shall be required to issue, amend, renew amend or extend increase any Letter of Credit, unless the Swingline Lender or such Issuing Bank, as the case may be, Bank shall have entered into arrangements with the Borrower or such Revolving Lender Lender, satisfactory to the Swingline Lender or such Issuing Bank, as the case may be, Bank to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the Borrower, the Swingline Lender and each Issuing Bank each agree in writing that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender (a “Restored Lender”), then the Swingline Exposure and LC Exposure Exposures of the Revolving Lenders shall be reallocated in accordance with their Applicable Percentages readjusted to reflect the inclusion of such Lender’s Revolving Commitment, and on such date such Restored Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Restored Lender to hold such Loans in accordance with its Applicable Percentage (with the term “Applicable Percentage” meaning. The rights and remedies against, and with respect to any to, a Defaulting Lender for purposes of reallocations to be made pursuant to under this paragraphSection 2.18 are in addition to, and cumulative and not in limitation of, all other rights and remedies that the Administrative Agent and each Lender, each Issuing Bank, the percentage of the Aggregate Revolving Commitment represented by Borrower or any other Loan Party may at any time have against, or with respect to, such Defaulting Lender’s Revolving Commitment at the time of such reallocation calculated including the Revolving Commitment of such Restored Lender but disregarding the Revolving Commitments of the Defaulting Lenders at such time).
Appears in 1 contract
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unused amount of the Available Revolving Loan Commitment of such Defaulting Lender pursuant to Section 2.12(a)2.13;
(b) the Revolving Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided provided, that any this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of all Lenders such Lender or all Lenders each Lender affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereofthereby;
(c) if any Swingline Exposure or LC Exposure exists at the time such Revolving Lender becomes a Defaulting Lender then:
(i) so long as no Default or Event of Default shall be continuing, all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the Nonnon-Defaulting Lenders in accordance with their respective Applicable Percentages (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph (c), the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated disregarding the Revolving Commitments of the Defaulting Lenders at such time) but only to the extent that the sum of all Nonnon-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the sum total of all Nonnon-Defaulting Lenders’ Revolving Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall shall, within one (1) Business Day following notice by the Administrative Agent (A) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (B) secondAgent, cash collateralize for the benefit of each Issuing Bank only the Issuing Banks the portion of Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure that has not been reallocated (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.05(i2.06(j) for so long as such LC Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower shall not be required to pay participation any fees to such Defaulting Lender pursuant to Section 2.12(b2.13(b) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such the non-Defaulting Lender Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(bSection 2.13(b) shall be adjusted to give effect to in accordance with such reallocationnon-Defaulting Lenders’ Applicable Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all participation letter of credit fees payable under Section 2.12(b2.13(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) Bank until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(dvi) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lender Issuing Banks shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew amend or extend increase any Letter of Credit, unless in each case it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline LC Exposure or LC Exposure, as applicable, will be fully 100% covered by the Revolving Commitments of the Nonnon-Defaulting Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 2.20(c2.06(j), and participating interests in any such funded Swingline Loan newly issued or in any such issued, amended, reviewed or extended increased Letter of Credit will shall be allocated among the Nonnon-Defaulting Lenders in a manner consistent with Section 2.20(c)(i2.06(j) (and such Defaulting Lender shall not participate therein). In the event that If (xi) a Bankruptcy Event with respect to a Revolving Lender Parent or any Lender shall have occurred occur following the date hereof and for so long as such Bankruptcy Event event shall continue continue, (ii) a Bail-in Action with respect to a Lender Parent or any Lender shall occur following the date hereof or (yiii) the Swingline Lender or any Issuing Bank has Banks have a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender an Issuing Bank shall not be required to fund any Swingline Loan, and no Issuing Bank shall be required to issue, amend, renew amend or extend increase any Letter of Credit, unless the Swingline Lender or such Issuing Bank, as the case may be, Bank shall have entered into arrangements with the Borrower or such Revolving Lender Lender, satisfactory to the Swingline Lender or such Issuing Bank, as the case may be, Bank to defease any risk to it in respect of such Lender hereunder.
(d) Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article VII or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 9.08 shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Issuing Bank hereunder; third, to cash collateralize the Issuing Banks’ LC Exposure in accordance with clause (c) above; fourth, as the Borrower may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the 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 (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) cash collateralize the Issuing Banks’ future LC Exposure with respect to such Defaulting Lender; sixth, to the payment of any amounts owing to the Lenders, the Issuing Banks as a result of any judgment of a court of competent jurisdiction obtained by any Lender or the Issuing Banks against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans or LC Disbursements in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 4.02 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and LC Disbursements owed to, all non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or LC Disbursements owed to, such Defaulting Lender until such time as all Loans and funded and unfunded Letters of Credit are held by the Lenders pro rata in accordance with the Commitments without giving effect to Section 2.20. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 2.22 shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
(e) In the event that the Administrative Agent, the Borrower, Borrower and the Swingline Lender and Issuing Banks each Issuing Bank each agree agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender (a “Restored Lender”), then the Swingline Exposure and LC Exposure of the Revolving Lenders shall be reallocated in accordance with their Applicable Percentages readjusted to reflect the inclusion of such Lender’s Revolving Loan Commitment and on such date such Restored Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Restored Lender to hold such Loans in accordance with its Applicable Percentage (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph, the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated including the Revolving Commitment of such Restored Lender but disregarding the Revolving Commitments of the Defaulting Lenders at such time).
Appears in 1 contract
Sources: Credit Agreement (Cleco Power LLC)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unused amount unfunded portion of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a)2.5;
(b) the Revolving Commitment and Revolving Outstanding Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 9.028.2); , provided that any amendmentwaiver, waiver amendment or other modification requiring the consent of all Lenders or all each affected Lender that affects such Defaulting Lender differently than other affected Lenders affected thereby shall, except as otherwise provided in Section 9.02, shall require the consent of such Defaulting Lender in accordance with the terms hereofLender;
(c) if any Swingline Exposure Swing Line Loans shall be outstanding or any LC Exposure exists Obligations exist at the time such Revolving a Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure unfunded participations in and commitments with respect to such Swing Line Loans or LC Exposure of such Defaulting Lender Obligations shall be reallocated among the Nonnon-Defaulting Lenders in accordance with their respective Applicable Percentages (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph (c), the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated disregarding the Revolving Commitments of the Defaulting Lenders at such time) Pro Rata Shares but only to the extent that (x) the sum of all Nonnon-Defaulting Lenders’ Revolving Exposures Outstanding Credit Exposure plus such Defaulting Lender’s Swingline Exposure Lenders’ Loans and LC Exposure participations in and commitments with respect to Loans and Facility LCs does not exceed the sum total of all Nonnon-Defaulting Lenders’ Revolving CommitmentsLender’s Commitments and (y) the conditions set forth in Article IV are satisfied at such time; provided, that the Standby LC Fees payable to the Lenders shall be determined taking into account any such reallocation;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent (Ax) first, prepay the portion of such Defaulting Lender’s Swingline Exposure Revolving Percentage of the outstanding Swing Line Loans that has were not been reallocated and (By) second, cash collateralize for the benefit of the Issuing Banks the portion of such Defaulting Lender’s Pro Rata Share of the LC Exposure that has not been reallocated Obligations in accordance with the procedures set forth in Section 2.05(i) 8.1 for so long as such Facility LC Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Facility LC Exposure pursuant to clause (ii) above, the Borrower shall not be required to pay participation any fees to such Defaulting Lender pursuant to Section 2.12(b2.19(d) with respect to such portion of Defaulting Lender’s Facility LC Exposure during the period such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s Facility LC Exposure is cash collateralized;collateralized by the Borrower; and
(iv) if any portion of the LC Exposure of such Defaulting Lender is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(b) shall be adjusted to give effect to such reallocation; and
(v) if all or any portion of such Defaulting Lender’s Facility LC Exposure is neither reallocated nor not cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank the applicable LC Issuer(s) or any other Lender hereunder, all participation letter of credit fees payable under Section 2.12(b2.19(d) with respect to such Defaulting Lender’s Facility LC Exposure that have been reallocated to the other Lenders (and, for clarification, not any portion that has been cash collateralized) shall be payable to the Issuing Banks non-defaulting Lenders and the applicable LC Issuer(s) (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that not reallocated to the non-defaulting Lenders) until such Facility LC Exposure is reallocated and/or cash collateralized; and;
(d) so long as such Revolving any Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Bank LC Issuer shall be required to issue, amend, renew issue or extend Modify any Letter of CreditFacility LC, unless in each case it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure or LC Exposure, as applicable, will be fully 100% covered by the Revolving Commitments of the Non-Defaulting Lenders and/or cash collateral provided by the Borrower in accordance with Section 2.20(c), and participating interests in any such funded Swingline Loan 2.22(c) or in any such issued, amended, reviewed or extended Letter of Credit will be allocated among the Nonto non-Defaulting defaulting Lenders in a manner consistent accordance with Section 2.20(c)(i2.22(c); and
(e) (and any amount payable to such Defaulting Lender shall not participate therein). In hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 11.2 but excluding Section 2.20) shall, in lieu of being distributed to such Defaulting Lender, be retained by the event that Administrative Agent in a segregated account and, subject to any applicable requirements of law, be applied at such time or times as are determined by the Administrative Agent (xi) a Bankruptcy Event with respect first, to a Revolving the payment of any amounts owing by such Defaulting Lender Parent shall have occurred following to the date hereof and for so long as Administrative Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Bankruptcy Event shall continue Defaulting Lender to the LC Issuers or Swing Line Lender hereunder, (yiii) third, to the Swingline Lender or any Issuing Bank has a good faith belief that funding of any Revolving Lender has defaulted Loan or the funding or cash collateralization of any participating interest in fulfilling its obligations under one any Swing Line Loan or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan, and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless the Swingline Lender or such Issuing Bank, as the case may be, shall have entered into arrangements with the Borrower or such Revolving Lender satisfactory to the Swingline Lender or such Issuing Bank, as the case may be, to defease any risk to it Facility LC in respect of which such Defaulting Lender hereunder. In the event that has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (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 Swingline Lender and each Issuing Bank each agree that a Defaulting Lender has adequately remedied all matters that caused under this Agreement, (v) fifth, pro rata, to the payment of any amounts owing to the Lenders as a result of any judgment of a court of competent jurisdiction obtained by any Lender against such Lender to be a Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, (vi) sixth, so long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrower as a “Restored result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result of such Defaulting Lender”)’s breach of its obligations under this Agreement, then (vii) seventh, if so determined by the Swingline Exposure and LC Administrative Agent, distributed to the Lenders other than the Defaulting Lender until the ratio of the Outstanding Credit Exposure of such Lenders to the Revolving Lenders shall be reallocated Aggregate Outstanding Exposure equals such ratio immediately prior to the Defaulting Lender’s failure to fund any portion of any Loans or participations in accordance with their Applicable Percentages Facility LCs or Swing Line Loans and on (viii) eighth, to such date Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided, that if such Restored Lender shall purchase at par such payment is a prepayment of the Revolving principal amount of any Loans or Reimbursement Obligations in respect of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Restored Lender to hold such Loans in accordance with its Applicable Percentage (with the term “Applicable Percentage” meaning, draws under Facility LCs with respect to any Lender for purposes of reallocations which the applicable LC Issuer(s) has funded its participation obligations, such payment shall be applied solely to be made pursuant to this paragraphprepay the Loans of, the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated including the Revolving Commitment of such Restored Lender but disregarding the Revolving Commitments of the and Reimbursement Obligations owed to, all Lenders that are not Defaulting Lenders at such time)pro rata prior to being applied to the prepayment of any Loans, or Reimbursement Obligations owed to, any Defaulting Lender.
Appears in 1 contract
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment 2.6.1 fees shall cease to accrue on the unused amount unfunded portion of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a)5.1;
(b) the Revolving Commitment and Revolving Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided that any amendment, waiver or other modification requiring the consent of all Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereof;
(c) 2.6.2 if any Swingline Exposure or LC Exposure exists Letters of Credit are outstanding at the time such Revolving a Lender becomes a Defaulting Lender then:
(iA) all or any part of the Swingline Exposure and LC Exposure Defaulting Lender’s obligation to participate in Letters of such Defaulting Lender Credit shall be reallocated among the Nonnon-Defaulting Lenders in accordance with their respective Applicable Percentages (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made Pro Rata Shares as determined pursuant to this paragraph clause (c), the percentage a) of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time definition of such reallocation calculated disregarding the Revolving Commitments of the Defaulting Lenders at such time) “Pro Rata Share” but only to the extent that (x) the sum of all Nonnon-Defaulting Lenders’ Revolving Exposures Outstandings plus such Defaulting Lender’s Swingline Exposure and LC Exposure obligation to participate in Letters of Credit does not exceed the sum total of all Nonnon-Defaulting Lenders’ Revolving CommitmentsCommitments and (y) the conditions set forth in Section 12.2 are satisfied at such time;
(iiB) if the reallocation described in clause (ia) above cannot, or can only partially, be effected, the Borrower Company shall within one Business Day following notice by the Administrative Agent (A) first, prepay the portion of Cash Collateralize such Defaulting Lender’s Swingline Exposure that has not been reallocated and obligation to participate in Letters of Credit (Bafter giving effect to any partial reallocation pursuant to clause (a) second, cash collateralize for the benefit of the Issuing Banks the portion of such Defaulting Lender’s LC Exposure that has not been reallocated above) in accordance with the procedures set forth in Section 2.05(i) 2.3.1 for so long as such LC Exposure obligation to participate in Letters of Credit is outstanding;
(iiiC) if the Borrower cash collateralizes Company Cash Collateralizes any portion of such Defaulting Lender’s LC Exposure obligation to participate in Letters of Credit pursuant to clause (ii) aboveSection 2.6.2, the Borrower Company shall not be required to pay participation any fees to such Defaulting Lender pursuant to Section 2.12(b) 5.2 with respect to such portion Defaulting Lender’s obligation to participate in Letters of Credit during the period such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC Exposure obligation to participate in Letters of Credit is cash collateralizedCash Collateralized;
(ivD) if any portion the obligation to participate in Letters of Credit of the LC Exposure of such non-Defaulting Lender Lenders is reallocated pursuant to clause (i) abovethis Section 2.6.2, then the fees payable to the Lenders pursuant to Sections 2.12(a) Section 5.1 and 2.12(b) Section 5.2 shall be adjusted in accordance with such non-Defaulting Lenders’ Pro Rata Shares (as determined pursuant to give effect to such reallocationclause (a) of the definition of “Pro Rata Share”); and
(vE) if all or any portion of such Defaulting Lender’s LC Exposure obligation to participate in Letters of Credit is neither Cash Collateralized nor reallocated nor cash collateralized pursuant to clause (i) or (ii) abovethis Section 2.6.2, then, without prejudice to any rights or remedies of any Issuing Bank Lender or any other Lender hereunder, all participation letter of credit fees payable under Section 2.12(b) 5.2 with respect to such Defaulting Lender’s LC Exposure obligation to participate in Letters of Credit shall be payable to the applicable Issuing Banks (and allocated among them ratably based on the amount of Lender until such Defaulting Lender’s LC Exposure attributable obligation to participate in Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated Cash Collateralized and/or cash collateralizedreallocated; and
(d) 2.6.3 so long as such Revolving any Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Bank Lender shall be required to issue, amend, renew amend or extend increase any Letter of Credit, unless in each case it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure or LC Exposure, as applicable, will be fully 100% covered by the Revolving Commitments of the Nonnon-Defaulting Lenders and/or cash collateral will be provided by the Borrower Company in accordance with Section 2.20(c)2.6.2, and participating interests in any such funded Swingline Loan newly issued or in any such issued, amended, reviewed or extended increased Letter of Credit will shall be allocated among the Nonnon-Defaulting Lenders in a manner consistent with Section 2.20(c)(i2.6.2(A) (and such Defaulting Lender Lenders shall not participate therein). In ;
2.6.4 in the event that (x) a Bankruptcy Event with respect to a Revolving Lender Parent shall have occurred following the date hereof and for so long as such Bankruptcy Event shall continue or (y) the Swingline Lender or any Issuing Bank has a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan, and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless the Swingline Lender or such Issuing Bank, as the case may be, shall have entered into arrangements with the Borrower or such Revolving Lender satisfactory to the Swingline Lender or such Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the Borrower, Company and the Swingline Lender and applicable Issuing Lender(s) each Issuing Bank each agree agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender (a “Restored Lender”), then the Swingline Exposure and LC Exposure obligations to participate in Letters of Credit of the Revolving Lenders shall be reallocated in accordance with their Applicable Percentages readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Restored Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Restored Lender to hold such Loans in accordance with its Applicable Percentage Pro Rata Share (with as determined pursuant to clause (a) of the term definition of “Applicable Percentage” meaningPro Rata Share”);
2.6.5 any amount payable to a Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 7.5) shall, in lieu of being distributed to such Defaulting Lender, be retained by Administrative Agent in a segregated account and, subject to any applicable requirements of law, be applied at such time or times as may be determined by Administrative Agent (i) first, to the payment of any amounts owing by such Defaulting Lender to Administrative Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to the Issuing Lender(s), (iii) third, to the funding of any Revolving Loan or the funding or cash collateralization of any participating interest in any Letter of Credit in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by Administrative Agent, (iv) fourth, if so determined by Administrative Agent and the Company, held in such account as cash collateral for future funding obligations of the Defaulting Lender under this Agreement, (v) fifth, pro rata, to the payment of any amounts owing to the Company or the Lenders as a result of any judgment of a court of competent jurisdiction obtained by any Company or any Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, and (vi) sixth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided, that if such payment is (x) a prepayment of the principal amount of any Loans or reimbursement obligations in respect of draws under Letters of Credit with respect to which the Issuing Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 12.2 are satisfied, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all Revolving Lenders that are not Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Lender; and
2.6.6 no Defaulting Lender for purposes of reallocations shall have any right to be made approve or disapprove any amendment, waiver, consent or any other action the Lenders or the Required Lenders have taken or may take hereunder (including any consent to any amendment or waiver pursuant to this paragraphSection 15.1), provided that any waiver, amendment or modification requiring the percentage consent of all Lenders or each directly affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time consent of such reallocation calculated including the Revolving Commitment of such Restored Lender but disregarding the Revolving Commitments of the Defaulting Lenders at such time)Lender.
Appears in 1 contract
Defaulting Lenders. Notwithstanding any provision of this Credit Agreement to the contrary, if any Revolving Lender becomes a Defaulting LenderLender hereunder (as determined by the Administrative Agent or, in the case of clause (d) below, any applicable L/C Issuer), then the following provisions shall apply for so long as such Revolving Defaulting Lender is a Defaulting Lender:
(a) commitment the Administrative Agent (or the applicable L/C Issuer, as the case may be) shall promptly notify the Parent Borrower and each Lender that such Lender is a Defaulting Lender for purposes of this Credit Agreement;
(b) fees under Section 2.09(a) shall cease to accrue on the unused amount of the Revolving Commitment of such Defaulting Lender (except to the extent reallocated pursuant to Section 2.12(a2.16(e));
(bc) the Revolving Commitment Commitments and Revolving Exposure Loans of such Defaulting Lender shall not be included in determining disregarded for all purposes of any determination of whether the Required Lenders, Required Revolving Lenders, Required Dollar Revolving Lenders, Required L/C Lenders, Required Limited Currency Revolving Lenders, Required Multicurrency Revolving Lenders, Required 2020-1 Incremental Revolving Lenders, Required Delayed Draw Term A Lenders or any other requisite Required Term B-4 Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 9.0211.01); provided that any amendment, waiver or other modification requiring the consent of all Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereof;
(cd) if any Swingline Exposure Loan or LC Exposure exists Letter of Credit is outstanding at the time such Revolving Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the Non-Defaulting Lenders in accordance with their respective Applicable Percentages (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph (c), the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated disregarding the Revolving Commitments of the Defaulting Lenders at such time) but only to the extent that the sum of all Non-Defaulting Lenders’ Revolving Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the sum of all Non-Defaulting Lenders’ Revolving Commitments;
(ii) if the reallocation notice described in clause (ia) above cannot, or can only partially, be effectedis provided, the Parent Borrower shall within one Business Day following notice by the Administrative Agent (Ai) first, prepay the portion of such Swingline Loan and (ii) cash collateralize such Defaulting Lender’s Swingline Exposure that has not been reallocated and (B) second, cash collateralize for the benefit of the Issuing Banks the portion of such Defaulting Lender’s LC Exposure that has not been reallocated L/C Obligations in accordance with Section 2.03(a)(ii)(A)(5) and on terms similar to the procedures set forth in Section 2.05(i2.03(g) for so long as such LC L/C Obligations are outstanding; provided that (A) to the extent the sum of the total Dollar Revolving Obligations (other than any Dollar Revolving Obligations constituting outstanding Dollar Revolving Loans made by any Defaulting Lender but including each Defaulting Lender’s Dollar Facility L/C Obligations and Swingline Exposure) does not exceed the sum of the total Dollar Revolving Commitments (excluding the Dollar Revolving Commitment of any Defaulting Lender except to the extent of any outstanding Dollar Revolving Loans of such Defaulting Lender), the Administrative Agent may, by notice to the Dollar Revolving Lenders, elect to reallocate the Swingline Exposure is outstandingamong all non-Defaulting Lenders under the Dollar Revolving Facility by disregarding the Dollar Revolving Commitments of all Defaulting Lenders (except to the extent of any outstanding Dollar Revolving Loans of such Defaulting Lenders) for purposes of calculating each non-Defaulting Lender’s Dollar Revolving Commitment Percentage, and to the extent the Administrative Agent elects to require such reallocation in accordance with the foregoing, no such Swingline Loan shall be required to be repaid pursuant to this Section 2.16(d) to the extent of such reallocation and (B) to the extent the sum of the total Dollar Revolving Obligations (other than any Dollar Revolving Obligations constituting outstanding Dollar Revolving Loans made by any Defaulting Lender but including each Defaulting Lender’s Dollar Facility L/C Obligations and Swingline Exposure) plus the total Limited Currency Revolving Obligations (other than any Limited Currency Revolving Obligations constituting outstanding Limited Currency Revolving Loans made by any Defaulting Lender but including each Defaulting Lender’s Limited Currency Facility L/C Obligations) does not exceed the sum of the total Dollar Revolving Commitments (excluding the Dollar Revolving Commitment of any Defaulting Lender except to the extent of any outstanding Dollar Revolving Loans of such Defaulting Lender) plus the total Limited Currency Revolving Commitments (excluding the Limited Currency Revolving Commitment of any Defaulting Lender except to the extent of any outstanding Limited Currency Revolving Loans of such Defaulting Lender), the Administrative Agent may, by notice to the Dollar Revolving Lenders and the Limited Currency Revolving Lenders, elect to reallocate the L/C Obligations among all non-Defaulting Lenders under the Dollar Revolving Facility and Limited Currency Revolving Facility by disregarding the Dollar Revolving Commitments and Limited Currency Revolving Commitments of all Defaulting Lenders (except to the extent of any outstanding Loans of such Defaulting Lenders) for purposes of calculating each non-Defaulting Lender’s L/C Commitment Percentage, and to the extent the Administrative Agent elects to require such reallocation in accordance with the foregoing, no such L/C Obligations shall be required to be cash collateralized pursuant to this Section 2.16(d) to the extent of such reallocation; provided that the reallocation pursuant to the foregoing shall not be permitted to the extent it would cause (x) any Dollar Revolving Lender’s Dollar Revolving Obligations to exceed its Dollar Revolving Committed Amount or (y) any Limited Currency Revolving Lender’s Limited Currency Revolving Obligations to exceed its Limited Currency Revolving Committed Amount;
(iiie) if to the extent:
(i) the Parent Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure L/C Obligations pursuant to clause (ii) aboveSection 2.16(d), the Parent Borrower shall not be required to pay participation any fees to such Defaulting Lender pursuant to Section 2.12(b2.09(b)(i) with respect to such portion of Defaulting Lender’s L/C Obligations during the period such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC Exposure is L/C Obligations are cash collateralized;
collateralized (iv) if any portion of the LC Exposure of such Defaulting Lender is but shall be reallocated pursuant to clause (iii) below);
(ii) the L/C Obligations of the non-Defaulting Lenders are reallocated pursuant to each applicable proviso to Section 2.16(d) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(bSection 2.09(b)(i) shall be adjusted proportionately to give effect to reflect such reallocation; andor
(viii) if all or the Parent Borrower fails to cash collateralize any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized L/C Obligations pursuant to clause (iSection 2.16(d) or (iiabove and the L/C Obligations are not reallocated pursuant to either proviso, as applicable, to Section 2.16(d) above, then, without prejudice to any rights or remedies of any Issuing Bank L/C Issuer or any other Lender hereunder, then all participation fees that otherwise would have been payable under to such Defaulting Lender pursuant to Section 2.12(b2.09(b)(i) with respect to such Defaulting Lender’s LC Exposure L/C Obligations shall be payable to the Issuing Banks each applicable L/C Issuer until such L/C Obligations are cash collateralized or reallocated pursuant to Section 2.16(d);
(and allocated among them ratably based on f) for purposes of determining:
(i) the amount of the total Commitments for purposes of Sections 2.01, 2.03(b) and 2.04(a), the Commitment of each Defaulting Lender shall be excluded therefrom (other than any portion of such Commitment pursuant to which there is then outstanding a Loan from such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralized); and
(dii) so long as such Revolving the applicable L/C Obligations of any Lender with respect to any Letter of Credit that is issued, increased (to the extent of the increase only) or renewed (but, for the avoidance of doubt, not with respect to any other applicable L/C Obligations relating to any other Letter of Credit) during the period in which there is a Defaulting Lender or the Swingline Exposure of any Lender with respect to any Swingline Loan made during the period in which there is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew or extend any Letter Commitment of Credit, unless in each case it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure or LC Exposure, as applicable, will be fully covered by the Revolving Commitments of the Non-Defaulting Lenders and/or cash collateral provided by the Borrower in accordance with Section 2.20(c), and participating interests in any such funded Swingline Loan or in any such issued, amended, reviewed or extended Letter of Credit will be allocated among the Non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate thereinbe deemed to be zero; and
(g) in the Administrative Agent’s sole discretion:
(i) any prepayment of the principal amount of any Loans shall be applied solely to prepay the Loans of all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans of any Defaulting Lender; and
(ii) subject to Section 2.16(e)(iii). In , any amount payable to such Defaulting Lender pursuant to this Credit Agreement (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.12 or Section 3.06(b)) may, in lieu of being distributed to such Defaulting Lender, be retained by the event that Administrative Agent in a segregated non-interest bearing account and, subject to any applicable requirements of law, be applied at such time or times as may be determined by the Administrative Agent (xi) a Bankruptcy Event with respect first, pro rata, to a Revolving the payment of any amounts owing by such Defaulting Lender Parent shall have occurred following to the date hereof and for so long as such Bankruptcy Event shall continue Administrative Agent, applicable L/C Issuer or (y) the Swingline Lender hereunder, (ii) second, pro rata, to the payment of any amounts owing to the Borrowers or the Lenders as a result of any judgment of a court of competent jurisdiction obtained by any Borrower or any Issuing Bank has Lender against such Defaulting Lender as a good faith belief that any Revolving Lender has defaulted in fulfilling result of such Defaulting Lender’s breach of its obligations under one or more other agreements in which this Credit Agreement and (iii) third, to such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan, and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless the Swingline Defaulting Lender or such Issuing Bank, as the case may be, shall have entered into arrangements with the Borrower or such Revolving Lender satisfactory to the Swingline Lender or such Issuing Bank, as the case may be, to defease any risk to it in respect otherwise directed by a court of such Lender hereundercompetent jurisdiction. In the event that the Administrative Agent, the Parent Borrower, each applicable L/C Issuer and the Swingline Lender and each Issuing Bank each agree agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, the Administrative Agent shall promptly notify each Lender (that such Lender has ceased to be a “Restored Lender”)Defaulting Lender and, then from and after the date of such notification, the Swingline Exposure and LC Exposure L/C Obligations of the Revolving Lenders shall be reallocated in accordance with their Applicable Percentages readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Restored Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Restored Lender to hold such Loans in accordance with its Applicable Dollar Facility Percentage (with the term “Applicable and Limited Currency Facility Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph, the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated including the Revolving Commitment of such Restored Lender but disregarding the Revolving Commitments of the Defaulting Lenders at such time).
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Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
: (ai) commitment fees shall cease to accrue on the unused amount unfunded portion of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a);
2.3 [Unused Line Fees]; (bii) the Revolving Commitment and Revolving Exposure outstanding Loans of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.02Section
12.1 [Modifications, Amendments or Waivers]); provided provided, that any this clause (ii) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of all Lenders such Lender or all Lenders each Lender directly affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereof;
thereby; (ciii) if any Swingline Exposure Swing Loans are outstanding or LC Exposure exists any Letter of Credit Obligations exist at the time such Revolving Lender becomes a Defaulting Lender Lender, then:
(ia) all or any part of the Swingline Exposure outstanding Swing Loans and LC Exposure Letter of Credit Obligations of such Defaulting Lender shall be reallocated among the Nonnon-Defaulting Lenders in accordance with their respective Applicable Percentages (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph (c), the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated disregarding the Revolving Commitments of the Defaulting Lenders at such time) Ratable Shares but only to the extent that (x) the sum Revolving Facility Usage does not exceed the total of all Nonnon-Defaulting Lenders’ Revolving Exposures plus Credit Commitments, and (y) no Potential Default or Event of Default has occurred and is continuing at such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the sum of all Non-Defaulting Lenders’ Revolving Commitments;
time; (iib) if the reallocation described in clause (ia) above cannot, or can only partially, be effected, the Borrower Borrowers shall within one Business Day following notice by the Administrative Agent (Ax) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated outstanding Swing Loans, and (By) second, cash collateralize for the benefit of the Issuing Banks Lender the portion of Borrowers’ obligations corresponding to such Defaulting Lender’s LC Exposure that has not been reallocated Letter of Credit Obligations (after giving effect to any partial reallocation pursuant to clause (a) above) in accordance with a deposit account held at the procedures set forth in Section 2.05(i) Administrative Agent for so long as such LC Exposure is Letter of Credit Obligations are outstanding;
; (iiic) if the Borrower Borrowers cash collateralizes collateralize any portion of such Defaulting Lender’s LC Exposure Letter of Credit Obligations pursuant to clause (iib) above, the Borrower Borrowers shall not be required to pay participation any fees to such Defaulting Lender pursuant to Section 2.12(b) 2.9.2 [Letter of Credit Fees] with respect to such portion Defaulting Lender’s Letter of Credit Obligations during the period such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC Exposure is Letter of Credit Obligations are cash collateralized;
; (ivd) if any portion the Letter of Credit Obligations of the LC Exposure of such non-Defaulting Lender is Lenders are reallocated pursuant to clause (ia) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(b) Section 2.9.2 [Letter of Credit Fees] shall be adjusted to give effect to in accordance with such reallocationnon-Defaulting Lenders’ Ratable Share; and
and (ve) if all or any portion of such Defaulting Lender’s LC Exposure is Letter of Credit Obligations are neither reallocated nor cash collateralized pursuant to clause (ia) or (iib) above, then, without prejudice to any rights or remedies of any the Issuing Bank Lender or any other Lender hereunder, all participation fees Letter of Credit Fees payable under Section 2.12(b) 2.9.2 [Letter of Credit Fees] with respect to such Defaulting Lender’s LC Exposure Letter of Credit Obligations shall be payable to the Issuing Banks Lender (and allocated among them ratably based on the amount of not to such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is Letter of Credit Obligations are reallocated and/or cash collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless in each case it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure or LC Exposure, as applicable, will be fully covered by the Revolving Commitments of the Non-Defaulting Lenders and/or cash collateral provided by the Borrower in accordance with Section 2.20(c), and participating interests in any such funded Swingline Loan or in any such issued, amended, reviewed or extended Letter of Credit will be allocated among the Non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein). In the event that (x) a Bankruptcy Event with respect to a Revolving Lender Parent shall have occurred following the date hereof and for so long as such Bankruptcy Event shall continue or (y) the Swingline Lender or any Issuing Bank has a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan, and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless the Swingline Lender or such Issuing Bank, as the case may be, shall have entered into arrangements with the Borrower or such Revolving Lender satisfactory to the Swingline Lender or such Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the Borrower, the Swingline Lender and each Issuing Bank each agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender (a “Restored Lender”), then the Swingline Exposure and LC Exposure of the Revolving Lenders shall be reallocated in accordance with their Applicable Percentages and on such date such Restored Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Restored Lender to hold such Loans in accordance with its Applicable Percentage (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph, the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated including the Revolving Commitment of such Restored Lender but disregarding the Revolving Commitments of the Defaulting Lenders at such time).
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Defaulting Lenders. Notwithstanding any provision of this Agreement (a) Anything contained herein to the contrarycontrary notwithstanding, if in the event that any Revolving Lender becomes is a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unused amount of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a);
(b) the Revolving Commitment and Revolving Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided that any amendment, waiver or other modification requiring the consent of all Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereof;
(c) if any Swingline Exposure or LC Exposure exists at the time such Revolving Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the Non-Defaulting Lenders in accordance with their respective Applicable Percentages (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph (c), the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated disregarding the Revolving Commitments of the Defaulting Lenders at such time) but only to the extent that the sum of all Non-Defaulting Lenders’ Revolving Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the sum of all Non-Defaulting Lenders’ Revolving Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent (A) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (B) second, cash collateralize for the benefit of the Issuing Banks the portion of such Defaulting Lender’s LC Exposure that has not been reallocated in accordance with the procedures set forth in Section 2.05(i) for so long as such LC Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower shall not be required to pay participation fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such Defaulting Lender is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(b) shall be adjusted to give effect to such reallocation; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all participation fees payable under Section 2.12(bx) with respect to such Defaulting Lender’s LC Exposure , such Defaulting Lender shall be payable deemed not to be a “Lender” for purposes of voting on any matters (including the Issuing Banks granting of any consents or waivers) with respect to any of the Credit Documents (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bankother than as expressly provided in Section 10.5(b)), (y) until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Revolving Lender is permitted by applicable law, no voluntary prepayments or any mandatory prepayments shall be applied to the Loans of a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless in each case it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure or LC Exposure, as applicable, will be fully covered by the Revolving Commitments of the Non-Defaulting Lenders and/or cash collateral provided by the Borrower in accordance with Section 2.20(c), and participating interests in any such funded Swingline Loan or in any such issued, amended, reviewed or extended Letter of Credit will be allocated among the Non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i(z) (and such Defaulting Lender shall not participate therein)be entitled to receive any fees paid pursuant to the terms of this Agreement. In The rights and remedies against a Defaulting Lender under this Section 2.21 are in addition to other rights and remedies which the event that (x) a Bankruptcy Event with respect to a Revolving Borrower may have against such Defaulting Lender Parent shall have occurred following and which the date hereof and for so long as such Bankruptcy Event shall continue or (y) the Swingline Lender Administrative Agent or any Issuing Bank has a good faith belief Lender may have against such Defaulting Lender.
(b) Notwithstanding the fact that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan, and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless the Swingline Lender or such Issuing Bank, as the case may be, shall have entered into arrangements with the Borrower or such Revolving Lender satisfactory to the Swingline Lender or such Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the Borrower, the Swingline Lender and each Issuing Bank each agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender Lender, (a “Restored Lender”), then the Swingline Exposure and LC Exposure of the Revolving Lenders shall x) no adjustments will be reallocated in accordance with their Applicable Percentages and on such date such Restored Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Restored Lender to hold such Loans in accordance with its Applicable Percentage (with the term “Applicable Percentage” meaning, made retroactively with respect to any Lender for purposes of reallocations to be fees accrued or payments made pursuant to this paragraph, the percentage by or on behalf of the Aggregate Revolving Commitment represented Borrower while such Lender was a Defaulting Lender and (y) except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from such Lender’s Revolving Commitment at the time of such reallocation calculated including the Revolving Commitment of such Restored Lender but disregarding the Revolving Commitments of the having been a Defaulting Lenders at such time).Lender
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Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment 2.5.1. fees shall cease to accrue on the unused amount unfunded portion of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a);5.1; and
(b) the Revolving Commitment and Revolving Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided that any amendment, waiver or other modification requiring the consent of all Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereof;
(c) 2.5.2. if any Swingline Exposure or LC Exposure exists Swing Line Loans are outstanding at the time such Revolving a Lender becomes a Defaulting Lender then:
(ia) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender Lender’s participation in Swing Line Loans shall be reallocated among the Non-Defaulting Lenders in accordance with their respective Applicable Percentages Pro Rata Shares (with the term “Applicable Percentage” meaning, with respect calculated without regard to any Lender for purposes of reallocations to be made pursuant to this paragraph (c), the percentage of the Aggregate Revolving Commitment represented by such Defaulting Lender’s Revolving Commitment at the time of such reallocation calculated disregarding the Revolving Commitments of the Defaulting Lenders at such timeCommitment) but only to the extent that (x) the sum conditions set forth in Section 12.2 are satisfied at the time of all such reallocation (and, unless the Company shall have otherwise notified the Administrative Agent at such time, the Company shall be deemed to have represented and warranted that such conditions are satisfied at such time), and (y) such reallocation does not cause the aggregate Revolving Credit Exposure of any Non-Defaulting Lenders’ Revolving Exposures plus Lender to exceed such Non-Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the sum Revolving Commitment. No reallocation hereunder shall constitute a waiver or release of all any claim of any party hereunder against a Defaulting Lender arising from that Lender having become a Defaulting Lender, including any claim of a Non-Defaulting Lenders’ Revolving Commitments;Lender as a result of such Non-Defaulting Lender’s increased exposure following such reallocation; and
(iib) if the reallocation described in clause (i2.5.2(a) above cannot, or can only partially, be effected, the Borrower Company shall within one three (3) Business Day Days following notice by the Administrative Agent (A) firstAgent, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (B) second, cash collateralize for the benefit of the Issuing Banks the portion of such Defaulting Lender’s LC Exposure that has not been reallocated obligation to participate in accordance with the procedures set forth in Section 2.05(i) for so long as such LC Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower shall not be required to pay participation fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such Defaulting Lender is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(b) shall be adjusted to give effect to such reallocationSwing Line Loans; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all participation fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so 2.5.3. So long as such Revolving any Lender is a Defaulting Lender, the Swingline Swing Line Lender shall not be required to fund any Swingline Swing Line Loan and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless in each case it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure or LC Exposure, as applicable, will be fully 100% covered by the Revolving Commitments of the Nonnon-Defaulting Lenders and/or cash collateral will be provided by the Borrower Company in accordance with Section 2.20(c)2.5.2, and participating interests in any such funded Swingline newly made Swing Line Loan or in any such issued, amended, reviewed or extended Letter of Credit will shall be allocated among the Nonnon-Defaulting Lenders in a manner consistent with Section 2.20(c)(i2.5.2(a) (and such Defaulting Lender Lenders shall not participate therein).
2.5.4. In If the event that (x) a Bankruptcy Event with respect to a Revolving Lender Parent shall have occurred following the date hereof and for so long as such Bankruptcy Event shall continue or (y) the Swingline Lender or any Issuing Bank has a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend creditCompany, the Swingline Administrative Agent and the Swing Line Lender shall not be required to fund any Swingline Loan, and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless the Swingline Lender or such Issuing Bank, as the case may be, shall have entered into arrangements with the Borrower or such Revolving Lender satisfactory to the Swingline Lender or such Issuing Bank, as the case may be, to defease any risk to it agree in respect of such Lender hereunder. In the event that the Administrative Agent, the Borrower, the Swingline Lender and each Issuing Bank each agree writing that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (a “Restored Lender”which may include arrangements with respect to any cash collateral), then that Lender will, to the Swingline Exposure and LC Exposure extent applicable, purchase that portion of outstanding Loans of the other Lenders or take such other actions as the Administrative Agent may reasonably determine to be necessary to cause the Revolving Loans and funded and unfunded participations in Swing Line Loans to be held on a pro rata basis by the Lenders shall be reallocated in accordance with their Applicable Percentages and on such date such Restored Pro Rata Shares (without giving effect to Section 2.5.2), whereupon that Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may will cease to be necessary in order for such Restored Lender to hold such Loans in accordance with its Applicable Percentage (with the term “Applicable Percentage” meaning, a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Company while that Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.
2.5.5. Any amount payable to a Defaulting Lender for purposes hereunder (whether on account of reallocations principal, interest, fees or otherwise and including any amount that would otherwise be payable to be made such Defaulting Lender pursuant to this paragraphSection 7.6 but excluding Section 8.7(b)) shall, in lieu of being distributed to such Defaulting Lender, be retained by Administrative Agent in a segregated account and, subject to any applicable requirements of Law, be applied at such time or times as may be determined by Administrative Agent (i) first, to the percentage payment of the Aggregate Revolving Commitment represented any amounts owing by such Lender’s Defaulting Lender to Administrative Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to the Swing Line Lender hereunder, (iii) third, to the funding of any Revolving Commitment at Loan or the time funding or cash collateralization of any participating interest in any Swing Line Loan in respect of which such reallocation calculated including Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by Administrative Agent, (iv) fourth, if so determined by Administrative Agent and the Revolving Commitment of Company, held in such Restored Lender but disregarding the Revolving Commitments account as cash collateral for future funding obligations of the Defaulting Lender under this Agreement, (v) fifth, pro rata, to the payment of any amounts owing to the Company or the Lenders as a result of any judgment of a court of competent jurisdiction obtained by the Company or any Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, and (vi) sixth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided, that if such payment is (x) a prepayment of the principal amount of any Loans and (y) made at a time when the conditions set forth in Section 12.2 are satisfied, such timepayment shall be applied solely to prepay the Loans of all Lenders with a Revolving Commitment that are not Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Lender.
2.5.6. No Defaulting Lender shall have any right to approve or disapprove any amendment, waiver, consent or any other action the Lenders or the Required Lenders have taken or may take hereunder (including any consent to any amendment or waiver pursuant to Section 15.1), provided that any waiver, amendment or modification set forth in clauses (a) through (c) of Section 15.1 requiring the consent of all Lenders or each directly affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lender.
Appears in 1 contract
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment facility fees shall cease continue to accrue on the unused amount of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a) only to the extent of the Revolving Credit Exposure of such Defaulting Lender (excluding any portion thereof constituting LC Exposure of such Defaulting Lender that is subject to reallocation under clause (c)(i) below);
(b) the Commitment, the Revolving Commitment Credit Exposure and Revolving Exposure the aggregate principal amount of outstanding Competitive Loans of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.0210.02); provided that any amendment, waiver or other modification requiring the consent of all Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 9.0210.02, require the consent of such Defaulting Lender in accordance with the terms hereof;
(c) if any Swingline Exposure or LC Exposure exists at the time such Revolving Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.06(e) and 2.06(f)) shall be reallocated among the Non-Defaulting Lenders in accordance with their respective Applicable Percentages (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph (c), the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated disregarding the Revolving Commitments of the Defaulting Lenders at such time) but only to the extent that (A) the sum of all Non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure (excluding the portion thereof referred to above) does not exceed the sum of all Non-Defaulting Lenders’ Commitments and (B) after giving effect thereto, the Revolving CommitmentsCredit Exposure of any Non-Defaulting Lender shall not exceed the Commitment of such Non-Defaulting Lender;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent (A) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (B) second, cash collateralize for the benefit of the Issuing Banks Lenders the portion of such Defaulting Lender’s LC Exposure that has not been reallocated as set forth in such clause in accordance with the procedures set forth in Section 2.05(i2.06(l) for so long as such LC Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower shall not be required to pay participation fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such Defaulting Lender is reallocated pursuant to clause (i) above, then the participation fees payable to the Lenders pursuant to Sections 2.12(a) and Section 2.12(b) shall be adjusted to give effect to such reallocation; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure that is subject to reallocation pursuant to clause (i) above is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank Lender or any other Lender hereunder, all facility fees that otherwise would have been payable to such Defaulting Lender with respect to such portion of its LC Exposure, and all participation fees payable under Section 2.12(b) with respect to such Defaulting Lender’s portion of its LC Exposure Exposure, shall be payable to the Issuing Banks Lenders (and allocated among them ratably based on the amount of such Defaulting Lender’s portion of the LC Exposure of such Defaulting Lender attributable to Letters of Credit issued by each Issuing BankLender) until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Bank Lender shall be required to issue, amend, renew or extend any Letter of CreditCredit unless, unless in each case case, it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline LC Exposure or LC Exposure, as applicable, will be fully covered by the Revolving Commitments of the Non-Defaulting Lenders and/or cash collateral provided by the Borrower in accordance with Section 2.20(c)clause (c) above, and participating interests in any such funded Swingline Loan or in any such issued, amended, reviewed renewed or extended Letter of Credit will be allocated among the Non-Defaulting Lenders in a manner consistent with Section 2.20(c)(iclause (c)(i) above (and such Defaulting Lender shall not participate therein). In the event that (x) a Bankruptcy Event or a Bail-In Action with respect to a Revolving Lender Parent of any Lender shall have occurred following the date hereof and for so long as such Bankruptcy Event event shall continue or (y) the Swingline Lender or any Issuing Bank has a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend creditcontinue, the Swingline Lender shall not be required to fund any Swingline Loan, and no Issuing Bank Lender shall be required to issue, amend, renew or extend any Letter of Credit, Credit unless the Swingline Lender or such Issuing Bank, as the case may be, Lender shall have entered into arrangements (including arrangements referred to in clause (c) above, treating such Lender as if it were a Defaulting Lender (with each Lender hereby agreeing to such arrangements)) with the Borrower or such Revolving the applicable Lender satisfactory to the Swingline Lender or such Issuing Bank, as the case may be, Lender to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the Borrower, the Swingline Lender Borrower and each Issuing Bank Lender each agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender (a “Restored Lender”), then the Swingline Exposure and LC Exposure of the Revolving Lenders shall be reallocated in accordance with their Applicable Percentages readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Restored Lender shall purchase at par (plus pay any break funding amounts, determined in accordance with Section 2.16, to the extent such purchase occurs on a date other than on the last day of the Interest Period applicable to thereto) such of the Revolving Syndicated Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Restored Lender to hold such Loans in accordance with its Applicable Percentage (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph, the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated including the Revolving Commitment of such Restored Lender but disregarding the Revolving Commitments of the Defaulting Lenders at such time).
Appears in 1 contract
Sources: Credit Agreement (Best Buy Co Inc)
Defaulting Lenders. Notwithstanding If any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unused amount portion of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a2.07(a);
(b) the Revolving Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification permitted to be effected by the Required Lenders pursuant to Section 9.0211.05); provided that any amendment, waiver or other modification requiring the consent of all Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereof;
(c) if any Swingline Exposure or LC Exposure exists Letter of Credit Liabilities exist at the time such Revolving Lender becomes a Defaulting Lender then:
(i) all or any part the Letter of the Swingline Exposure and LC Exposure Credit Liabilities of such Defaulting Lender shall be automatically reallocated among the Nonnon-Defaulting Lenders in accordance with their respective Applicable Percentages (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph (c), the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated disregarding the Revolving Commitments of the Defaulting Lenders at such time) but only to the extent that the sum of all Nonnon-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure Letter of Credit Liabilities does not exceed the sum total of all Nonnon-Defaulting Lenders’ Revolving Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one three Domestic Business Day Days following notice by the Administrative Agent either (Ax) first, prepay procure the portion reduction or termination of such the Defaulting Lender’s Swingline Exposure that has not been reallocated and Letter of Credit Liabilities (Bafter giving effect to any partial reallocation pursuant to clause (i) second, cash collateralize above) or (y) Cash Collateralize for the benefit of the Issuing Banks Lender only the portion of Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure that has not been reallocated Letter of Credit Liabilities (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.05(i) 6.03 for so long as such LC Exposure is Letter of Credit Liabilities are outstanding;
(iii) if the Borrower cash collateralizes Cash Collateralizes any portion of such Defaulting Lender’s LC Exposure Letter of Credit Liabilities pursuant to clause (ii) above, the Borrower shall not be required to pay participation any fees to such Defaulting Lender pursuant to Section 2.12(b2.07(b) with respect to such portion Defaulting Lender’s Letter of Credit Liabilities during the period such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC Exposure is cash collateralizedLetter of Credit Liabilities are Cash Collateralized;
(iv) if any portion to the extent that the Letter of Credit Liabilities of the LC Exposure of such non-Defaulting Lender is Lenders are reallocated pursuant to clause (i) above, then the letter of credit fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(bSection 2.07(b) shall to the same extent be adjusted to give effect to in accordance with such reallocationnon-Defaulting Lenders’ Applicable Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure Letter of Credit Liabilities is neither reallocated not reallocated, reduced, terminated nor cash collateralized Cash Collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any the Issuing Bank Lender or any other Lender hereunder, all participation letter of credit fees payable under Section 2.12(b2.07(b) with respect to such Defaulting Lender’s LC Exposure Letter of Credit Liabilities shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) Lender until and to the extent that such LC Exposure is reallocated Letter of Credit Liabilities are reallocated, reduced, terminated and/or cash collateralizedCash Collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender, the Swingline Issuing Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amendextend, renew or extend increase any Letter of Credit, unless in each case it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure or LC Exposure, as applicable, Letter of Credit Liabilities after giving effect thereto will be fully 100% covered by the Revolving Commitments of the Nonnon-Defaulting Lenders and/or cash collateral provided by the Borrower prepaid, reduced, terminated and/or Cash Collateralized in accordance with Section 2.20(c2.21(c), and participating interests in any such funded Swingline Loan newly issued or in any such issued, amended, reviewed or extended increased Letter of Credit will shall be allocated among the Nonnon-Defaulting Lenders in a manner consistent with Section 2.20(c)(i) (and 2.21(c)(i)(and such Defaulting Lender shall not participate therein). In If the event that (x) a Bankruptcy Event with respect to a Revolving Issuing Lender Parent shall have occurred following the date hereof and for so long as such Bankruptcy Event shall continue or (y) the Swingline Lender or any Issuing Bank has a good faith belief that any Revolving Lender has defaulted in fulfilling its funding obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Issuing Lender shall not be required to fund any Swingline Loan, and no Issuing Bank shall be required to issue, amendextend, renew or extend increase any Letter of Credit, unless the Swingline Issuing Lender or such Issuing Bank, as the case may be, shall have entered into arrangements with the Borrower or such Revolving Lender Lender, reasonably satisfactory to the Swingline Issuing Lender or such Issuing Bank, as the case may be, to defease any risk to it the Issuing Lender in respect of such Lender hereunderhereunder relating to Letter of Credit Liabilities. In the event that the Administrative Agent, the Borrower, Borrower and the Swingline Issuing Lender and each Issuing Bank each agree agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender (a “Restored Lender”), then the Swingline Exposure and LC Exposure Letter of Credit Liabilities of the Revolving Lenders shall be reallocated in accordance with their Applicable Percentages readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Restored Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be is necessary in order for such Restored Lender to hold such Loans in accordance with its Applicable Percentage (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to ; provided that there shall be made no retroactive effect on fees reallocated pursuant to this paragraph, the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated including the Revolving Commitment of such Restored Lender but disregarding the Revolving Commitments of the Defaulting Lenders at such timeSection 2.21(c)(iv) and (v).
Appears in 1 contract
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees Commitment Fees shall cease to accrue on the unused amount of the Revolving Commitment Commitments of such Defaulting Lender pursuant to Section 2.12(a2.07(a);
(b) the Commitments, the Revolving Commitment Credit Exposures and Revolving Exposure the aggregate principal amount of outstanding Competitive Bid Loans of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.029.07); provided that any amendment, waiver or other modification requiring the consent of all Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 9.029.07, require the consent of such Defaulting Lender in accordance with the terms hereof;
(c) if any Swingline Exposure or LC Exposure of any Class exists at the time such Revolving Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Class of such Defaulting Lender (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.06(d) and 2.06(e)) shall be reallocated among the Non-Defaulting Lenders with Commitments of such Class ratably in accordance with their respective Applicable Percentages (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph (c), the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time Commitments of such reallocation calculated disregarding the Revolving Commitments of the Defaulting Lenders at such time) Class, but only to the extent that the sum of all Non-Defaulting Lenders’ Revolving Credit Exposures of such Class plus such Defaulting Lender’s Swingline Exposure and LC Exposure of such Class does not exceed the sum of all Non-Defaulting Lenders’ Revolving CommitmentsCommitments of such Class;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower applicable Borrowers shall within one Business Day following notice by the Administrative Agent (A) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (B) second, cash collateralize for the benefit of the Issuing Banks LC Issuers the portion of such Defaulting Lender’s LC Exposure of the applicable Class that has not been reallocated as set forth in such clause in accordance with the procedures set forth in Section 2.05(i2.06(m) for so long as such LC Exposure is outstanding;
(iii) if the Borrower Borrowers cash collateralizes collateralize any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower Borrowers shall not be required to pay participation fees to such Defaulting Lender LC Participation Fees pursuant to Section 2.12(b) with respect to such the portion of such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such Defaulting Lender is reallocated pursuant to clause (i) above, then the fees payable to the applicable Lenders pursuant to Sections 2.12(a) and 2.12(bSection 2.07(b) shall be adjusted to give effect to such reallocation; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure that is subject to reallocation pursuant to clause (i) above is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank LC Issuer or any other Lender hereunder, all participation fees LC Participation Fees payable under Section 2.12(b2.07(b) with respect to such Defaulting Lender’s portion of its LC Exposure shall be payable to the Issuing Banks LC Issuers (and allocated among them ratably based on the amount of such Defaulting Lender’s portion of the LC Exposure of such Defaulting Lender attributable to Letters of Credit issued by each Issuing BankLC Issuer) until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Bank LC Issuer shall be required to issue, amend, renew or extend any Letter of CreditCredit of an applicable Class unless, unless in each case case, it is satisfied that the related exposure and that, after giving effect to such funding or issuance, amendment, renewal or extension, the Defaulting Lender’s then outstanding Swingline LC Exposure or LC Exposure, as applicable, of each applicable Class will be fully covered by the Revolving Commitments of such Class of the Non-Defaulting Lenders and/or cash collateral provided by Lenders, after giving effect to the Borrower in accordance with Section 2.20(c), and reallocation of participating interests in any such funded Swingline Loan or in any such issued, amended, reviewed renewed or extended Letter of Credit will be allocated among the Non-Defaulting Lenders in a manner consistent accordance with Section 2.20(c)(iclause (c)(i) (and such Defaulting Lender shall not participate therein). In the event that (x) a Bankruptcy Event with respect to a Revolving Lender Parent shall have occurred following the date hereof and for so long as such Bankruptcy Event shall continue or (y) the Swingline Lender or any Issuing Bank has a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan, and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless the Swingline Lender or such Issuing Bank, as the case may be, shall have entered into arrangements with the Borrower or such Revolving Lender satisfactory to the Swingline Lender or such Issuing Bank, as the case may be, to defease any risk to it above and/or cash collateral in respect of such Lender hereunder. Letter of Credit is provided by the Borrowers in accordance with clause (c)(ii) above.
(e) In the event that the Administrative Agent, the Borrower, the Swingline Lender Company and each Issuing Bank LC Issuer each agree in writing that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender (a “Restored Lender”), then the Swingline Exposure and LC Exposure of the Revolving applicable Lenders shall be reallocated in accordance with their Applicable Percentages readjusted to reflect the inclusion of such Lender’s Commitments and on such date such Restored Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Restored Lender the Lenders to hold such Loans ratably in accordance with its Applicable Percentage (with the term “Applicable Percentage” meaning, their applicable Commitments; provided that no adjustments will be made retroactively with respect to fees accrued while that Lender was a Defaulting Lender; and provided further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any Lender for purposes claim of reallocations to be made pursuant to this paragraph, the percentage of the Aggregate Revolving Commitment represented by such any party hereunder arising from that Lender’s Revolving Commitment at the time of such reallocation calculated including the Revolving Commitment of such Restored Lender but disregarding the Revolving Commitments of the having been a Defaulting Lenders at such time)Lender.
Appears in 1 contract
Sources: Revolving Credit Facility Agreement (Hartford Financial Services Group Inc/De)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unused amount unfunded portion of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a2.03(a);
(b) the Revolving Commitment and Revolving Outstanding Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 9.02); provided that any amendment8.01, waiver or other modification requiring than those which require the consent of all Lenders or all Lenders of each affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereofLender);
(c) if any Swingline Exposure or LC Exposure exists Obligations exist at the time such Revolving Lender becomes a Defaulting Lender Lender, then:
(i) so long as no Default or Event of Default has occurred and is continuing, all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender Obligations shall be reallocated among the Nonnon-Defaulting Lenders in accordance with their respective Applicable Percentages (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph (c), the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated disregarding the Revolving Commitments of the Defaulting Lenders at such time) Pro Rata Shares but only to the extent that the sum of all Nonnon-Defaulting Lenders’ Revolving Exposures LC Obligations plus such Defaulting Lender’s Swingline Exposure and LC Exposure Obligations does not exceed the sum total of all Nonnon-Defaulting Lenders’ Revolving Commitments and the sum of all non-Defaulting Lenders’ Outstanding Credit Exposure plus such Defaulting Lender’s LC Obligations does not exceed the total of all non-Defaulting Lenders’ Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent (A) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (B) secondAgent, cash collateralize for the benefit of the Issuing Banks LC Issuers only the portion of Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure that has not been reallocated Obligations (after giving effect to any partial reallocation pursuant to clause (i) above) by depositing funds in accordance with the procedures set forth in Section 2.05(i) Facility LC Collateral Account for so long as such LC Exposure is Obligations are outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure Obligations pursuant to clause (ii) above, the Borrower shall not be required to pay participation fees to such Defaulting Lender pursuant to Section 2.12(b) any Facility Fees or LC Fees with respect to such portion of such Defaulting Lender’s LC Exposure for so long as Obligations during the period such Defaulting Lender’s LC Exposure is Obligations are cash collateralized;
(iv) if any portion the LC Obligations of the LC Exposure of such non-Defaulting Lender is Lenders are reallocated pursuant to clause (i) above, then the fees LC Fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(bSection 2.03(c) shall be adjusted to give effect to in accordance with such reallocationnon-Defaulting Lenders’ Pro Rata Shares; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure Obligations is neither reallocated nor cash collateralized nor reallocated pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank the LC Issuers or any other Lender hereunder, all participation fees Facility Fees that otherwise would have been payable under to such Defaulting Lender pursuant to Section 2.12(b2.03(a) (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Obligations) and LC Fees payable to such Defaulting Lender pursuant to Section 2.03(c) with respect to such Defaulting Lender’s LC Exposure Obligations shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) Issuers until and to the extent that such LC Exposure is reallocated Obligations are cash collateralized and/or cash collateralized; andreallocated;
(d) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Bank LC Issuer shall be required to issue, amend, renew issue or extend Modify any Letter of CreditFacility LC, unless in each case it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure or LC Exposure, as applicable, will be fully 100% covered by the Revolving Commitments of the Nonnon-Defaulting Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 2.20(c2.18(c), and participating interests in any such funded Swingline Loan newly issued or in any such issued, amended, reviewed or extended Letter of Credit will Modified Facility LC shall be allocated among the Nonnon-Defaulting Lenders in a manner consistent with Section 2.20(c)(i2.18(c)(i) (and such Defaulting Lender Lenders shall not participate therein). In ;
(e) the event Borrower may, subject to the requirements of Sections 8.04 and 8.07, substitute for such Defaulting Lender another financial institution, which financial institution shall be an Eligible Assignee and shall assume the Commitments of such Defaulting Lender and purchase the Outstanding Credit Exposures held by such Defaulting Lender in accordance with Section 8.07; provided, however, that (xi) no Default shall have occurred and be continuing, (ii) the Borrower shall have satisfied all of its obligations in connection with the Loan Documents with respect to such Defaulting Lender, and (iii) if such assignee is not a Lender, (A) such assignee is acceptable to the Agent and (B) the Borrower shall have paid the Agent a $3,500 administrative fee;
(f) to the extent the Agent receives any payments or other amounts for the account of a Defaulting Lender under the Loan Documents, such Defaulting Lender shall be deemed to have requested that the Agent use such payment or other amount to fulfill such Defaulting Lender’s previously unsatisfied obligations to fund a Revolving Credit Advance or any other unfunded payment obligation of such Defaulting Lender under Section 2.02(d), 2.12(e), 2.16(d) or 7.05; and
(g) for the avoidance of doubt, the Borrower shall retain and reserve its other rights and remedies respecting each Defaulting Lender.
(i) a Bankruptcy Event or a Bail-In Action with respect to a Revolving parent of any Lender Parent shall have occurred occur following the date hereof and for so long as such Bankruptcy Event event shall continue or (yii) the Swingline Lender or any Issuing Bank LC Issuer has a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender such LC Issuer shall not be required to fund Modify any Swingline Loan, and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of CreditFacility LC, unless the Swingline Lender or such Issuing Bank, as the case may be, LC Issuer shall have entered into arrangements with the Borrower or such Revolving Lender Lender, reasonably satisfactory to the Swingline Lender or such Issuing Bank, as the case may be, LC Issuer to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the Borrower, Borrower and the Swingline Lender and LC Issuers each Issuing Bank each agree agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender (a “Restored Lender”), then the Swingline Exposure and LC Exposure of the Revolving Lenders Obligations shall be reallocated in accordance with their Applicable Percentages readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Restored Lender shall purchase at par on a ratable basis such of the Revolving Loans Outstanding Credit Exposures of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Restored Lender to hold such Loans Outstanding Credit Exposures in accordance with its Applicable Percentage (Pro Rata Share, whereupon such Lender shall cease to be a Defaulting Lender. For the purposes of clarity, in the event any Defaulting Lender is reinstated as a non-Defaulting Lender in accordance with the term “Applicable Percentage” meaning, terms hereof (i) no adjustments will be made retroactively with respect to any Lender for purposes of reallocations to be fees accrued or payments made pursuant to this paragraph, the percentage by or on behalf of the Aggregate Revolving Commitment represented Borrower while such Lender was a Defaulting Lender, and (ii) except to the extent otherwise expressly agreed by the affected parties, such reinstatement shall not constitute a waiver or release of any claim of any party hereunder arising from such Lender having been a Defaulting Lender’s Revolving Commitment at the time of such reallocation calculated including the Revolving Commitment of such Restored Lender but disregarding the Revolving Commitments of the Defaulting Lenders at such time).
Appears in 1 contract
Sources: Credit Agreement (DTE Electric Co)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting LenderLender hereunder, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unused amount of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a2.8(a);
(b) the Commitments and the Total Revolving Commitment and Revolving Exposure Extensions of Credit of such Defaulting Lender shall not be included in determining whether all Lenders, the Required Lenders Lenders, or any other requisite the Majority Facility Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.0211.1); provided that any amendmentwaiver, waiver amendment or other modification requiring of a type described in clause (i) or (ii) of Section 11.1 that would apply to the consent of all Lenders Commitments or all Lenders affected thereby shall, except as otherwise provided in Section 9.02, Obligations owing to such Defaulting Lender shall require the consent of such Defaulting Lender in accordance with respect to the terms hereofeffectiveness of such waiver, amendment or modification with respect to the Commitments or Obligations owing to such Defaulting Lender;
(c) if any Swingline Exposure Loan or LC Exposure exists Letter of Credit is outstanding at the time such Revolving Lender becomes a Defaulting Lender then:
(i) unless a Default shall have occurred and be continuing, all or any part of the Swingline Exposure Participation Amount and LC Exposure Obligations of such Defaulting Lender shall be reallocated among the Nonnon-Defaulting Lenders in accordance with their respective Applicable Revolving Percentages (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph (c), the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated disregarding the Revolving Commitments of the Defaulting Lenders at such time) but only to the extent that the sum of all Nonnon-Defaulting Lenders’ Revolving Exposures Extensions of Credit plus such Defaulting Lender’s Swingline Exposure Participation Amount and LC Exposure does Obligations do not exceed the sum total of all Nonnon-Defaulting Lenders’ Revolving Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Revolving Facility Administrative Agent (Ax) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated Participation Amount and (By) second, cash collateralize for the benefit of the Issuing Banks Lender only the portion of Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure that has not been reallocated Obligations (in each case, after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.05(i) 3.10 for so long as such LC Exposure is Obligations are outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Revolving Percentage of the LC Exposure Obligations pursuant to clause (ii) above, the Borrower shall not be required to pay participation any fees to such Defaulting Lender pursuant to Section 2.12(b2.8(c) with respect to such portion Defaulting Lender’s Revolving Percentage of the LC Obligations during the period such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC Exposure is Obligations are cash collateralized;
(iv) if any portion the LC Obligations of the LC Exposure of such non-Defaulting Lender is Lenders are reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(aSection 2.8(a) and 2.12(bSection 2.8(c) shall be adjusted to give effect to reflect such reallocationreallocation in accordance with such non-Defaulting Lenders’ Revolving Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure Obligations is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any the Issuing Bank Lender or any other Lender hereunder, all participation letter of credit fees payable under Section 2.12(b2.8(c) with respect to such Defaulting Lender’s LC Exposure Obligations shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) Lender until and to the extent that such LC Exposure is Obligations are reallocated and/or or cash collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and no the Issuing Bank Lender shall not be required to issue, amend, renew amend or extend increase any Letter of Credit, unless in each case it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure or LC Exposure, as applicable, Obligations will be fully 100% covered by the Revolving Commitments of the Nonnon-Defaulting Lenders and/or or cash collateral will be provided by the Borrower in accordance with Section 2.20(c2.26(c), and participating interests in any such funded newly made Swingline Loan or in any such issued, amended, reviewed newly issued or extended increased Letter of Credit will shall be allocated among the Nonnon-Defaulting Revolving Lenders in a manner consistent with Section 2.20(c)(i2.26(c)(i) (and such Defaulting Lender shall not participate therein). In the event that If (xi) a Bankruptcy Event with respect to a Revolving Lender Parent of any Lender shall have occurred occur following the date hereof Closing Date and for so long as such Bankruptcy Event event shall continue or (yii) the Swingline Lender or any the Issuing Bank Lender has a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan, Loan and no the Issuing Bank Lender shall not be required to issue, amend, renew amend or extend increase any Letter of Credit, unless the Swingline Lender or such the Issuing BankLender, as the case may be, shall have entered into arrangements with the Borrower or such Revolving Lender Lender, satisfactory to the Swingline Lender or such the Issuing BankLender, as the case may be, to defease mitigate any risk to it hereunder in respect of such Lender hereunderLender. In the event that each of the applicable Administrative Agent, the Borrower, the Swingline Lender and each the Issuing Bank each agree Lender agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender (a “Restored Lender”), then the Swingline Exposure Participation Amount and LC Exposure Obligations of the Revolving Lenders shall be reallocated in accordance with their Applicable Percentages readjusted to reflect the inclusion of such Lender’s Revolving Commitment and on such date such Restored Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the applicable Administrative Agent shall determine may be necessary in order for such Restored Lender to hold such Loans in accordance with its Applicable Percentage (with the term “Applicable Revolving Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph, the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated including the Revolving Commitment of such Restored Lender but disregarding the Revolving Commitments of the Defaulting Lenders at such time).
Appears in 1 contract
Defaulting Lenders. Notwithstanding any provision of this Agreement anything to the contrarycontrary contained in this Agreement, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unused amount of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a);
(b) the Revolving Commitment and Revolving Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided that any amendment, waiver or other modification requiring the consent of all Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereof;
(c) if any Swingline Exposure or LC Exposure exists at the time such Revolving Lender becomes a Defaulting Lender then:
(ia) all or obligations of any part of the Swingline Exposure and LC Exposure of such Defaulting Revolving Lender to purchase participations in or otherwise refinance or support such Swing Loans and Letters of Credit shall be reallocated among the Nonnon-Defaulting Revolving Lenders in accordance with their respective Applicable Revolver Percentages (with the term “Applicable Percentage” meaningthereof, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph (c), the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated disregarding the Revolving Commitments of the Defaulting Lenders at such time) but only to the extent that (i) the sum of the non-Defaulting Revolving Lenders’ Revolver Percentages of the aggregate outstanding amount of all NonRevolving Loans and all L/C Obligations do not exceed the total of all non-Defaulting Lenders’ Revolving Exposures plus such Credit Commitments and (ii) no non-Defaulting Revolving Lender’s Swingline Exposure Revolving Loans and LC Exposure does not exceed the sum of all Non-Defaulting Lenders’ L/C Obligations exceeds such Revolving Lender’s Revolving Credit Commitments;
(iib) if the reallocation described in clause (ia) above cannot, or can only partially, be effected, and the Administrative Agent shall not have sufficient cash collateral pursuant to Section 1.17(d) to secure the obligations of such Lender the Borrower shall shall, within one three (3) Business Day Days following written notice by the Administrative Agent Agent, at the Borrower’s option, (Ai) firstin the case of any Swing Loans, prepay any outstanding Swing Loans to the portion extent the obligations of the applicable Defaulting Lender to purchase participations in or otherwise refinance or support Swing Loans have not been reallocated pursuant to clause (a) above, (ii) cash collateralize such Defaulting Lender’s Swingline Exposure that has not been reallocated and (B) second, cash collateralize for the benefit pro rata share of the Issuing Banks the portion obligations to purchase participations in or otherwise refinance or support Letters of such Defaulting Lender’s LC Exposure that has not been reallocated in accordance with the procedures set forth in Section 2.05(iCredit (after giving effect to any partial reallocation pursuant to clause (a) above) for so long as such LC Exposure is outstandingobligations are outstanding or (iii) make other arrangements reasonably satisfactory to the Administrative Agent to protect the L/C Issuer or the Swing Line Lender, as the case may be, from the risk of non-payment by such Defaulting Lender;
(iiic) if the Borrower cash collateralizes any portion obligations of such the applicable Defaulting Lender’s LC Exposure Revolving Lender to purchase Participating Interests in or otherwise refinance or support Letters of Credit are reallocated among the non-Defaulting Lenders pursuant to clause (ii) above, the Borrower shall not be required to pay participation fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such Defaulting Lender is reallocated pursuant to clause (ia) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(bSection 2.1(b) shall be adjusted in accordance with such non-Defaulting Revolving Lender’s Revolver Percentages;
(d) any payment of principal, interest, fees, indemnity payments or other amounts received by the Administrative Agent for the account of such Defaulting Lender under the Loan Documents (whether voluntary or mandatory, at maturity, pursuant to give effect Section 9 or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 13.16 shall be applied as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the payment, on a pro rata basis, of any amounts owing by such Defaulting Lender to any L/C Issuer or Swing Line Lender hereunder; third, to cash collateralize the L/C Issuer’s exposure and Swing Line Lender’s exposure with respect to such reallocationDefaulting Lender in accordance with Section 1.17(b); and
fourth, as the Borrower may request (vso long as no Default exists), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement; 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 (x) if all satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) cash collateralize the L/C Issuer’s and the Swing Line Lender’s future exposure with respect to such Defaulting Lender with respect to future Letters of Credit issued and Swing Loans, as applicable, under this Agreement; sixth, to the payment of any amounts owing to the Lenders, any L/C Issuer or Swing Line Lender as a result of any portion judgment of a court of competent jurisdiction obtained by any Lender, any L/C Issuer or Swing Line Lender against such Defaulting Lender as a result of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant breach of its obligations under this Agreement; seventh, to clause (i) or (ii) above, then, without prejudice to any rights or remedies the payment of any Issuing Bank or amounts owing to the Borrower as a result of any other Lender hereunder, all participation fees payable under Section 2.12(b) with respect to judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender’s LC Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount Lender as a result of such Defaulting Lender’s LC Exposure attributable breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans or Reimbursement Obligations in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 7.1 were satisfied and waived, such payment shall be applied solely to pay the Loans of, and Reimbursement Obligations with respect to Letters of Credit issued by each Issuing Bank) until and owed to, all non-Defaulting Lenders on a pro rata basis prior to being applied to the extent that payment of any Loans of, or Reimbursement Obligations with respect to Letters of Credit owed to, such LC Exposure is reallocated and/or cash collateralizedDefaulting Lender until such time as all Loans and funded and unfunded Participating Interests in Letters of Credit and Swing Loans are held by the Lenders pro rata in accordance with the applicable Commitments without giving effect to Section 1.17(a); and
(de) so long as no such Revolving Defaulting Lender shall be entitled to receive any fee pursuant to Section 2 for any period during which that Lender is a Defaulting LenderLender (and no fees shall accrue for the account of such Defaulting Lender during the period that such Lender is a Defaulting Lender and, for the avoidance of doubt, the Swingline Lender Borrower shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless in each case it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure or LC Exposure, as applicable, will be fully covered by the Revolving Commitments of the Non-Defaulting Lenders and/or cash collateral provided by the Borrower in accordance with Section 2.20(c), and participating interests in pay any such funded Swingline Loan or in any such issued, amended, reviewed or extended Letter of Credit will be allocated among the Non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i) (and fees); provided such Defaulting Lender shall not participate therein). In the event be entitled to receive fees pursuant to Section 2.1(a) and (b) for any period during which that (x) a Bankruptcy Event with respect to a Revolving Lender Parent shall have occurred following the date hereof and for so long as such Bankruptcy Event shall continue or (y) the Swingline Lender or any Issuing Bank has a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan, and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless the Swingline Lender or such Issuing Bank, as the case may be, shall have entered into arrangements with the Borrower or such Revolving Lender satisfactory to the Swingline Lender or such Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the Borrower, the Swingline Lender and each Issuing Bank each agree that is a Defaulting Lender has adequately remedied all matters that caused such Lender only to be a Defaulting Lender (a “Restored Lender”), then the Swingline Exposure and LC Exposure extent allocable to its Revolver Percentage of the Revolving Lenders shall be reallocated stated amount of Letters of Credit for which it has provided cash collateral in accordance with their Applicable Percentages and on such date such Restored Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Restored Lender to hold such Loans in accordance with its Applicable Percentage (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph, the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated including the Revolving Commitment of such Restored Lender but disregarding the Revolving Commitments of the Defaulting Lenders at such time)thereof.
Appears in 1 contract
Sources: Credit Agreement (Dave & Buster's Entertainment, Inc.)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees : The Commitment Fee shall cease to accrue on the unused amount any of the Revolving Commitment Credit Commitments of such Defaulting Lender pursuant to Section 2.12(a2.09(a);
(b) ; the Revolving Commitment Commitment, Outstanding Amount of Term Loans and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, the Required Lenders or any other requisite the Required Revolving Credit Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.0210.01); provided that any amendmentwaiver, waiver amendment or other modification requiring of a type described in clause (a), (b) or (c) of the consent of all Lenders or all Lenders affected thereby shall, except as otherwise provided first proviso in Section 9.02, 10.01 that would apply to the Commitments or Secured Obligations owing to such Defaulting Lender shall require the consent of such Defaulting Lender in accordance with respect to the terms hereof;
(c) effectiveness of such waiver, amendment or modification with respect to the Commitments or Secured Obligations owing to such Defaulting Lender; if any Swingline Exposure or LC L/C Exposure exists at the time such a Lender under the Revolving Lender Credit Facility becomes a Defaulting Lender then:
(i) : all or any part of the Swingline Exposure and LC L/C Exposure of such Defaulting Lender shall be reallocated among the Nonnon-Defaulting Lenders in accordance with their respective Applicable Percentages (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph (c), the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated disregarding the Revolving Commitments of the Defaulting Lenders at such time) but only to the extent that the sum of all Nonnon-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC L/C Exposure does not exceed the sum total of all Nonnon-Defaulting Lenders’ Revolving Commitments;
(ii) ; if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower Company shall within one three (3) Business Day Days following notice by the Revolving Facility Administrative Agent (A) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (B) second, cash collateralize Cash Collateralize for the benefit of the Issuing Banks L/C Issuer only the portion of Company’s obligations corresponding to such Defaulting Lender’s LC L/C Exposure that has not been reallocated (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.05(i2.03(f) for so long as such LC L/C Exposure is outstanding;
(iii) ; if the Borrower cash collateralizes Company Cash Collateralizes any portion of such Defaulting Lender’s LC L/C Exposure pursuant to clause (ii) above, the Borrower Company shall not be required to pay participation any fees to such Defaulting Lender pursuant to Section 2.12(b2.03(h) with respect to such portion of Defaulting Lender’s L/C Exposure during the period such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC L/C Exposure is cash collateralized;
(iv) Cash Collateralized; if any portion the L/C Exposures of the LC Exposure of such non-Defaulting Lender is reallocated Lenders are increased pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a2.09(a) and 2.12(b2.03(h) shall be adjusted to give effect to in accordance with such reallocationnon-Defaulting Lenders’ Applicable Percentages; and
(v) and if all or any portion of such Defaulting Lender’s LC L/C Exposure is neither reallocated nor cash collateralized Cash Collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank the L/C Issuer or any other Lender hereunder, all participation letter of credit fees payable under Section 2.12(b2.03(h) with respect to such portion of such Defaulting Lender’s LC L/C Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) L/C Issuer until and to the extent that such LC L/C Exposure is reallocated and/or cash collateralizedCash Collateralized; and
(d) and so long as such Revolving Lender is a Defaulting LenderLender under the Revolving Credit Facility, the Swingline Lender L/C Issuer shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew amend or extend increase any Letter of Credit, unless in each case it is satisfied has received assurances satisfactory to it that non-Defaulting Lenders will cover the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure or LC Exposure, as applicable, will be fully covered by the Revolving Commitments of the Non-Defaulting Lenders and/or cash collateral will be provided by the Borrower Company in accordance with Section 2.20(c2.16(c), and participating interests in any such funded Swingline Loan newly issued or in any such issued, amended, reviewed or extended increased Letter of Credit will shall be allocated among the Nonnon-Defaulting Lenders in a manner consistent with Section 2.20(c)(i2.16(c)(i) (and such Defaulting Lender shall not participate therein). In the event that (x) a Bankruptcy Event with respect to a the Revolving Lender Parent shall have occurred following the date hereof and for so long as such Bankruptcy Event shall continue or (y) the Swingline Lender or any Issuing Bank has a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan, and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless the Swingline Lender or such Issuing Bank, as the case may be, shall have entered into arrangements with the Borrower or such Revolving Lender satisfactory to the Swingline Lender or such Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that the Facility Administrative Agent, the Borrower, Company and the Swingline Lender and L/C Issuer each Issuing Bank each agree agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender (a “Restored Lender”), then the Swingline Exposure and LC Exposure L/C Exposures of the Revolving Credit Lenders shall be reallocated in accordance with their Applicable Percentages readjusted to reflect the inclusion of such Lender’s Revolving Credit Commitment and on such date such Restored Lender shall purchase at par such of the Revolving Credit Loans of the other Revolving Credit Lenders (other than Swingline Loans) as the Revolving Facility Administrative Agent shall determine may be necessary in order for such Restored Lender to hold such Revolving Credit Loans in accordance with its Applicable Percentage (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph, the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated including the Revolving Commitment of such Restored Lender but disregarding the Revolving Commitments of the Defaulting Lenders at such time).
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Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(ai) commitment fees shall cease to accrue on the unused amount unfunded portion of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a)2.3 [Commitment Fees];
(bii) the Revolving Commitment and Revolving Exposure outstanding Loans of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.0211.1 [Modifications, Amendments or Waivers]); provided provided, that any this clause (ii) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of all Lenders such Lender pursuant to Section 11.1 [Modifications, Amendments or all Lenders affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereofWaivers];
(ciii) if any Swingline Exposure Swing Loans are outstanding or LC Exposure exists any Letter of Credit Obligations exist at the time such Revolving Lender becomes a Defaulting Lender Lender, then:
(ia) all or any part of the Swingline Exposure outstanding Swing Loans and LC Exposure Letter of Credit Obligations of such Defaulting Lender shall be reallocated among the Nonnon-Defaulting Lenders in accordance with their respective Applicable Percentages (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph (c), the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated disregarding the Revolving Commitments of the Defaulting Lenders at such time) Ratable Shares but only to the extent that (x) the sum Revolving Facility Usage does not exceed the total of all Nonnon-Defaulting Lenders’ Revolving Exposures plus Credit Commitments, and (y) no Potential Default or Event of Default has occurred and is continuing at such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the sum of all Non-Defaulting Lenders’ Revolving Commitmentstime;
(iib) if the reallocation described in clause (ia) above cannot, or can only partially, be effectedeffected (after giving effect to any prepayment of Loans made by the Borrower in order to comply with clause (a) above), the Borrower shall within one Business Day following notice by the Administrative Agent (Ax) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated outstanding Swing Loans, and (By) second, cash collateralize for the benefit of the Issuing Banks Lender the portion of Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure that has not been reallocated Letter of Credit Obligations (after giving effect to any partial reallocation pursuant to clause (a) above) in accordance with an interest-bearing deposit account held at the procedures set forth in Section 2.05(i) Administrative Agent for so long as such LC Exposure is Letter of Credit Obligations are outstanding;
(iiic) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure Letter of Credit Obligations pursuant to clause (iib) above, the Borrower shall not be required to pay participation any fees to such Defaulting Lender pursuant to Section 2.12(b) 2.9.2 [Letter of Credit Fees] with respect to such portion Defaulting Lender’s Letter of Credit Obligations during the period such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC Exposure is Letter of Credit Obligations are cash collateralized;
(ivd) if any portion the Letter of Credit Obligations of the LC Exposure of such non-Defaulting Lender is Lenders are reallocated pursuant to clause (ia) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(b) Section 2.9.2 shall be adjusted to give effect to in accordance with such reallocationnon-Defaulting Lenders’ Ratable Share; and
(ve) if all or any portion of such Defaulting Lender’s LC Exposure is Letter of Credit Obligations are neither reallocated nor cash collateralized pursuant to clause (ia) or (iib) above, then, without prejudice to any rights or remedies of any the Issuing Bank Lender or any other Lender hereunder, all participation fees Letter of Credit Fees payable under Section 2.12(b) 2.9.2 with respect to such Defaulting Lender’s LC Exposure Letter of Credit Obligations shall be payable to the Issuing Banks Lender (and allocated among them ratably based on the amount of not to such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is Letter of Credit Obligations are reallocated and/or cash collateralized; and
(div) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lender PNC shall not be required to fund any Swingline Loan Swing Loans and no the Issuing Bank Lender shall not be required to issue, amend, renew amend or extend increase any Letter of Credit, unless in each case it such Issuing Lender is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure or LC Exposure, as applicable, Letter of Credit Obligations will be fully 100% covered by the Revolving Credit Commitments of the Nonnon-Defaulting Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 2.20(c2.10(iii), and participating interests in any such funded Swingline newly made Swing Loan or in any such issued, amended, reviewed newly issued or extended increased Letter of Credit will shall be allocated among the Nonnon-Defaulting Lenders in a manner consistent with Section 2.20(c)(i2.10(iii)(a) (and such Defaulting Lender shall not participate therein). In the event that If (xi) a Lender Bankruptcy Event with respect to a Revolving parent company of any Lender Parent shall have occurred occur following the date hereof and for so long as such Bankruptcy Event event shall continue continue, or (yii) PNC or the Swingline Issuing Lender or any Issuing Bank has a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender PNC shall not be required to fund any Swingline Loan, Swing Loan and no the Issuing Bank Lender shall not be required to issue, amend, renew amend or extend increase any Letter of Credit, unless PNC or the Swingline Lender or such Issuing BankLender, as the case may be, shall have entered into arrangements with the Borrower or such Revolving Lender Lender, satisfactory to PNC or the Swingline Lender or such Issuing BankLender, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the Borrower, PNC and the Swingline Issuing Lender and each Issuing Bank each agree in writing that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender (a “Restored Lender”), including the return of all cash collateralization funds to the Borrower, then the Swingline Exposure Administrative Agent will so notify the parties hereto, and LC Exposure the Ratable Share of the Revolving Swing Loans and Letter of Credit Obligations of the Lenders shall be reallocated in accordance with their Applicable Percentages readjusted to reflect the inclusion of such Lender’s Commitment, and on such date such Restored Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Swing Loans) as the Administrative Agent shall determine may be necessary in order for such Restored Lender to hold such Loans in accordance with its Applicable Percentage (Ratable Share, and any cash collateral provided by the Borrower in accordance with this Section 2.10 shall be returned to the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph, the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated including the Revolving Commitment of such Restored Lender but disregarding the Revolving Commitments of the Defaulting Lenders at such time)Borrower.
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Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unused amount unfunded portion of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a);; and
(b) the Revolving outstanding Commitment and Revolving Exposure Loans of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.0210.02); provided provided, that any this clause (b) shall not apply in the case of an amendment, waiver or other modification requiring the consent of all Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereof;
(c) if any Swingline Exposure or LC Exposure exists at the time such Revolving Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the Non-Defaulting Lenders in accordance with their respective Applicable Percentages (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph (c), the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated disregarding the Revolving Commitments of the Defaulting Lenders at such time) but only to the extent that the sum of all Non-Defaulting Lenders’ Revolving Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the sum of all Non-Defaulting Lenders’ Revolving Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent (A) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (B) second, cash collateralize for the benefit of the Issuing Banks the portion of such Defaulting Lender’s LC Exposure that has not been reallocated in accordance with the procedures set forth in Section 2.05(i) for so long as such LC Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower shall not be required to pay participation fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such Defaulting Lender is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(b) shall be adjusted to give effect to such reallocation; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all participation fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless in each case it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure or LC Exposure, as applicable, will be fully covered by the Revolving Commitments of the Non-Defaulting Lenders and/or cash collateral provided by the Borrower in accordance with Section 2.20(c), and participating interests in any such funded Swingline Loan or in any such issued, amended, reviewed or extended Letter of Credit will be allocated among the Non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein). In the event that (x) a Bankruptcy Event with respect to a Revolving Lender Parent shall have occurred following the date hereof and for so long as such Bankruptcy Event shall continue or (y) the Swingline Lender or any Issuing Bank has a good faith belief that any Revolving each Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan, and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless the Swingline Lender or such Issuing Bank, as the case may be, shall have entered into arrangements with the Borrower or such Revolving Lender satisfactory to the Swingline Lender or such Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunderaffected thereby. In the event that the Administrative Agent, Agent and the Borrower, the Swingline Lender and each Issuing Bank each Borrower agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender (a “Restored Lender”), then the Swingline Exposure and LC Exposure Loans of the Revolving Lenders shall be reallocated in accordance with their Applicable Percentages readjusted to reflect the inclusion of such Lender’s Commitments and on such date such Restored Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Restored Lender the Lenders to hold such Loans in accordance with its their Applicable Percentage (with the term “Applicable Percentage” meaning, with respect to Percentages. No Commitment of any Lender for purposes shall be increased or otherwise affected and, except as otherwise expressly provided in this Section, performance by the Borrower of reallocations its obligations hereunder and under the other Loan Documents shall not be excused or otherwise modified, as a result of the operation of this Section. The rights and remedies against a Defaulting Lender under this Section are in addition to be made pursuant to this paragraphother rights and remedies that the Borrower, the percentage Administrative Agent, or any non-Defaulting Lender may have against such Defaulting Lender (and, for the avoidance of doubt, each non-Defaulting Lender shall have a claim against any Defaulting Lender for any losses it may suffer as a result of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time operation of such reallocation calculated including the Revolving Commitment of such Restored Lender but disregarding the Revolving Commitments of the Defaulting Lenders at such timethis Section).
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Defaulting Lenders. Notwithstanding If any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unused amount of the such Defaulting Lender’s Revolving Commitment and outstanding Revolving Loans shall be excluded for purposes of calculating the fee payable to Revolving Lenders in respect of Section 2.09(a), and such Defaulting Lender shall not be entitled to receive any fee pursuant to Section 2.09(a) with respect to such Defaulting Lender’s Revolving Commitment or Revolving Loans (in each case not including any fee in connection with any portion of such Defaulting Lender Lenders Revolving Commitment that has been reallocated to non-Defaulting Lenders pursuant to Section 2.12(a2.16(d) hereof);.
(b) the Revolving Commitment Commitments and Revolving Exposure Loans of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 9.0212.01); provided that any amendment, waiver or other modification requiring the consent of all Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereof;.
(c) in the event a Defaulting Lender has defaulted on its obligation to fund any Revolving Loan, or purchase any participation pursuant to Section 2.03(d) or Section 2.04(d) hereof, until such time as the Default Excess with respect to such Defaulting Lender has been reduced to zero, any prepayments or repayments on account of the Revolving Loans or participations purchased pursuant to Section 2.03(d) or Section 2.04(d), in each case to the extent they would be otherwise be payable to such Defaulting Lender, shall be applied first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to the L/C Issuer, Support Provider or Swingline Lender hereunder; third, to Cash Collateralize the L/C Issuer’s (or the Support Provider’s, as the case may be) Fronting Exposure with respect to such Defaulting Lender; fourth, as the Borrowers may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and the Borrowers, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) Cash Collateralize the L/C Issuer’s (or the Support Provider’s, as the case may be) future Fronting Exposure with respect to such Defaulting Lender with respect to future Letters of Credit issued under this Agreement; sixth, to the payment of any amounts owing to the Lenders, the L/C Issuer, the Support Provider or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, the L/C Issuer, the Support Provider or Swingline Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided, that, if (x) such payment is a payment of the principal amount of any Loans or Letter of Credit Liabilities in respect of which such Defaulting Lender has not fully funded its appropriate share and (y) such Loans or Letter of Credit Liabilities were made at a time when the conditions set forth in Section 4.02 were satisfied or waived, such payment shall be applied solely to the pay the Loans of, and Letter of Credit Liabilities owed to, all non-Defaulting Lenders on a mg rata basis prior to being applied to the payment of any Loans of, or Letter of Credit Liabilities owed to, such Defaulting Lender. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post Cash Collateral pursuant to this Section 2.16(c) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
(d) If any Swingline Exposure Loans or LC Exposure exists Letter of Credit Liabilities are outstanding at the time such Revolving a Lender becomes a Defaulting Lender then:
(i) so long as no Default or Event of Default then exists, all or any part of the such Swingline Exposure Loans and LC Exposure Letter of such Defaulting Lender Credit Liabilities shall be reallocated among the Nonnon-Defaulting Revolving Lenders in accordance with their respective Applicable Percentages (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph (c), the percentage Pro Rata Shares of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated disregarding the total Revolving Commitments of the Defaulting Lenders at such time) but only (calculated without regard to the extent that the sum of all Non-Defaulting Lenders’ Revolving Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the sum of all Non-Defaulting Lenders’ Revolving Commitments), provided that no Revolving Lender’s Revolving Exposure shall exceed its Revolving Commitment;
(ii) if the reallocation described in clause paragraph (i) above cannot, or can only partially, be effected, the Borrower Borrowers shall within one Business Day following notice by the Administrative Agent (A) first, prepay the portion amount of such the Swingline Loans equal to Defaulting Lender’s Swingline Exposure that has not been reallocated Pro Rata Share thereof after giving effect to any partial reallocation pursuant to paragraph (i) above and (B) second, cash collateralize for the benefit of the Issuing Banks the portion of Cash Collateralize such Defaulting Lender’s LC Exposure that has not been reallocated Pro Rata Share of Letter of Credit Liabilities (after giving effect to any partial reallocation pursuant to paragraph (i) above) in accordance with the procedures set forth in Section 2.05(i2.03(g) and for so long as any such LC Exposure is Letter of Credit Obligations are outstanding;
(iii) if the Borrower cash collateralizes Borrowers Cash Collateralize any portion of such Defaulting Lender’s LC Exposure Pro Rata Share of Letter of Credit Obligations pursuant to clause (ii) abovethis Section 2.16(d), the Borrower Borrowers shall not be required to pay participation any fees to such Defaulting Lender pursuant to Section 2.12(b2.03(c) with respect to such the portion of such Defaulting Lender’s LC Exposure for so long as Pro Rata Share of Letter of Credit Obligations which have been Cash Collateralized (and the Defaulting Lender shall not be entitled to receive any such Defaulting Lender’s LC Exposure is cash collateralizedfees);
(iv) if any portion the Defaulting Lender’s Pro Rata Share of the LC Exposure Letter of such Defaulting Lender is Credit Obligations are reallocated pursuant to clause (i) abovethis Section 2.16(d), then the letter of credit fees payable to the non-Defaulting Lenders pursuant to Sections 2.12(a) and 2.12(bSection 2.03(c) shall be adjusted to give effect to such reallocationaccordingly; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure Pro Rata Share of Letter of Credit Liabilities is neither not Cash Collateralized or reallocated nor cash collateralized pursuant to clause (i) or (ii) abovethis Section 2.16(d), then, then without prejudice to any rights or remedies of any Issuing Bank the applicable Support Provider or any other Lender L/C Issuer hereunder, all participation letter of credit fees payable under Section 2.12(b2.03(c) with respect to such Defaulting Lender’s LC Exposure Pro Rata Share of Letter of Credit Liabilities shall be payable to the Issuing Banks (and allocated among them ratably based on L/C Issuer or if applicable, the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralized; andSupport Provider.
(de) so So long as such Revolving any Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan Loan, and no Issuing Bank L/C Issuer or Support Provider shall be required to issue, amend, renew extend or extend increase any Letter of CreditCredit or Support Agreement, unless in each case unless it is reasonably satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure or LC Exposure, as applicable, will be fully 100% covered by the Revolving Commitments of the Nonnon-Defaulting Lenders and/or cash collateral Cash Collateral will be provided by the Borrower Borrowers in accordance with Section 2.20(c2.03(g), and participating interests in any such funded Swingline Loan or in any such newly issued, amended, reviewed extended or extended increased Letter of Credit will or Support Agreement or newly made Swingline Loan shall be allocated among the Nonnon-Defaulting Lenders in a manner consistent with Section 2.20(c)(i2.16(d)(i) (and such Defaulting Lender Lenders shall not participate therein). In the event .
(f) No reallocation permitted pursuant to Section 2.16(d) shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that (x) Lender having become a Bankruptcy Event with respect to Defaulting Lender, including any claim of a Revolving non-Defaulting Lender Parent shall have occurred following the date hereof and for so long as such Bankruptcy Event shall continue or (y) the Swingline Lender or any Issuing Bank has a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan, and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless the Swingline Lender or such Issuing Bank, as the case may be, shall have entered into arrangements with the Borrower or such Revolving Lender satisfactory to the Swingline Lender or such Issuing Bank, as the case may be, to defease any risk to it in respect result of such Lender hereunder. non-Defaulting Lender’s increased exposure following such reallocation.
(g) In the event that the Administrative Agent, the BorrowerL/C Issuer, the Support Provider and the Swingline Lender and each Issuing Bank each agree agrees in writing that a Defaulting Lender has adequately remedied all matters that which caused such Lender to be become a Defaulting Lender (a “Restored Lender”), then the Pro Rata Shares of Swingline Exposure Loans and LC Exposure Letter of Credit Obligations of the Revolving Lenders shall be reallocated in accordance with their Applicable Percentages readjusted to reflect the inclusion of such Lender’s Revolving Commitment and on such date such Restored Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) or participations in the Revolving Loans as the Administrative Agent shall determine may be necessary in order for such Restored Lender to hold such Revolving Loans or participations in accordance with its Applicable Percentage (with the term “Applicable Percentage” meaningPro Rata Share; provided, that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers while that Lender was a Defaulting Lender; provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender
(h) to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender for purposes of reallocations having been a Defaulting Lender.
(i) The rights and remedies with respect to be made pursuant a Defaulting Lender under this Section 2.16 are in addition to this paragraphany other rights and remedies which the Borrower, the percentage of Administrative Agent, the Aggregate Revolving Commitment represented by L/C Issuer, the Support Provider or the Swingline Lender, as applicable, may have against such Defaulting Lender’s Revolving Commitment at the time of such reallocation calculated including the Revolving Commitment of such Restored Lender but disregarding the Revolving Commitments of the Defaulting Lenders at such time).
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Defaulting Lenders. Notwithstanding any provision of this Credit Agreement to the contrary, if any Revolving Lender becomes a Defaulting LenderLender hereunder (as determined by the Administrative Agent or, in the case of clause (d) below, any applicable L/C Issuer), then the following provisions shall apply for so long as such Revolving Defaulting Lender is a Defaulting Lender:
(a) commitment the Administrative Agent (or the applicable L/C Issuer, as the case may be) shall promptly notify the Parent Borrower and each Lender that such Lender is a Defaulting Lender for purposes of this Credit Agreement;
(b) fees under Section 2.09(a) shall cease to accrue on the unused amount of the Revolving Commitment of such Defaulting Lender (except to the extent reallocated pursuant to Section 2.12(a2.16(e));
(bc) the Revolving Commitment Commitments and Revolving Exposure Loans of such Defaulting Lender shall not be included in determining disregarded for all purposes of any determination of whether the Required Lenders, Required Revolving Lenders, Required Dollar Revolving Lenders, Required L/C Lenders, Required Limited Currency Revolving Lenders, Required Multicurrency Revolving Lenders, Required Term A-12 Lenders or any other requisite Required Term B-12 Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 9.0211.01); provided that any amendment, waiver or other modification requiring the consent of all Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereof;
(cd) if any Swingline Exposure Loan or LC Exposure exists Letter of Credit is outstanding at the time such Revolving Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the Non-Defaulting Lenders in accordance with their respective Applicable Percentages (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph (c), the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated disregarding the Revolving Commitments of the Defaulting Lenders at such time) but only to the extent that the sum of all Non-Defaulting Lenders’ Revolving Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the sum of all Non-Defaulting Lenders’ Revolving Commitments;
(ii) if the reallocation notice described in clause (ia) above cannot, or can only partially, be effectedis provided, the Parent Borrower shall within one Business Day following notice by the Administrative Agent (Ai) first, prepay the portion of such Swingline Loan and (ii) cash collateralize such Defaulting Lender’’s Swingline Exposure that has not been reallocated and (B) second, cash collateralize for the benefit of the Issuing Banks the portion of such Defaulting Lender’s LC Exposure that has not been reallocated L/C Obligations in accordance with Section 2.03(a)(ii)(F) and on terms similar to the procedures set forth in Section 2.05(i2.03(g) for so long as such LC L/C Obligations are outstanding; provided that (A) to the extent the sum of the total Dollar Revolving Obligations (other than any Dollar Revolving Obligations constituting outstanding Dollar Revolving Loans made by any Defaulting Lender but including each Defaulting Lender’’s Dollar Facility L/C Obligations and Swingline Exposure) does not exceed the sum of the total Dollar Revolving Commitments (excluding the Dollar Revolving Commitment of any Defaulting Lender except to the extent of any outstanding Dollar Revolving Loans of such Defaulting Lender), the Administrative Agent may, by notice to the Dollar Revolving Lenders, elect to reallocate the Swingline Exposure is outstandingamong all non-Defaulting Lenders under the Dollar Revolving Facility by disregarding the Dollar Revolving Commitments of all Defaulting Lenders (except to the extent of any outstanding Dollar Revolving Loans of such Defaulting Lenders) for purposes of calculating each non-Defaulting Lender’’s Dollar Revolving Commitment Percentage, and to the extent the Administrative Agent elects to require such reallocation in accordance with the foregoing, no such Swingline Loan shall be required to be repaid pursuant to this Section 2.16(d) to the extent of such reallocation and (B) to the extent the sum of the total Dollar Revolving Obligations (other than any Dollar Revolving Obligations constituting outstanding Dollar Revolving Loans made by any Defaulting Lender but including each Defaulting Lender’’s Dollar Facility L/C Obligations and Swingline Exposure) plus the total Limited Currency Revolving Obligations (other than any Limited Currency Revolving Obligations constituting outstanding Limited Currency Revolving Loans made by any Defaulting Lender but including each Defaulting Lender’’s Limited Currency Facility L/C Obligations) does not exceed the sum of the total Dollar Revolving Commitments (excluding the Dollar Revolving Commitment of any Defaulting Lender except to the extent of any outstanding Dollar Revolving Loans of such Defaulting Lender) plus the total Limited Currency Revolving Commitments (excluding the Limited Currency Revolving Commitment of any Defaulting Lender except to the extent of any outstanding Limited Currency Revolving Loans of such Defaulting Lender), the Administrative Agent may, by notice to the Dollar Revolving Lenders and the Limited Currency Revolving Lenders, elect to reallocate the L/C Obligations among all non-Defaulting Lenders under the Dollar Revolving Facility and Limited Currency Revolving Facility by disregarding the Dollar Revolving Commitments and Limited Currency Revolving Commitments of all Defaulting Lenders (except to the extent of any outstanding Loans of such Defaulting Lenders) for purposes of calculating each non-Defaulting Lender’’s L/C Commitment Percentage, and to the extent the Administrative Agent elects to require such reallocation in accordance with the foregoing, no such L/C Obligations shall be required to be cash collateralized pursuant to this Section 2.16(d) to the extent of such reallocation; provided that the reallocation pursuant to the foregoing shall not be permitted to the extent it would cause (x) any Dollar Revolving Lender’’s Dollar Revolving Obligations to exceed its Dollar Revolving Committed Amount or (y) any Limited Currency Revolving Lender’’s Limited Currency Revolving Obligations to exceed its Limited Currency Revolving Committed Amount;
(iiie) if to the extent:
(i) the Parent Borrower cash collateralizes any portion of such Defaulting Lender’’s LC Exposure L/C Obligations pursuant to clause (ii) aboveSection 2.16(d), the Parent Borrower shall not be required to pay participation any fees to such Defaulting Lender pursuant to Section 2.12(b2.09(b)(i) with respect to such portion of Defaulting Lender’’s L/C Obligations during the period such Defaulting Lender’’s LC Exposure for so long as such Defaulting Lender’s LC Exposure is L/C Obligations are cash collateralized;
collateralized (iv) if any portion of the LC Exposure of such Defaulting Lender is but shall be reallocated pursuant to clause (iii) below);
(ii) the L/C Obligations of the non-Defaulting Lenders are reallocated pursuant to each applicable proviso to Section 2.16(d) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(bSection 2.09(b)(i) shall be adjusted proportionately to give effect to reflect such reallocation; andor
(viii) if all or the Parent Borrower fails to cash collateralize any portion of such Defaulting Lender’’s LC Exposure is neither reallocated nor cash collateralized L/C Obligations pursuant to clause (iSection 2.16(d) or (iiabove and the L/C Obligations are not reallocated pursuant to either proviso, as applicable, to Section 2.16(d) above, then, without prejudice to any rights or remedies of any Issuing Bank L/C Issuer or any other Lender hereunder, then all participation fees that otherwise would have been payable under to such Defaulting Lender pursuant to Section 2.12(b2.09(b)(i) with respect to such Defaulting Lender’’s LC Exposure L/C Obligations shall be payable to the Issuing Banks each applicable L/C Issuer until such L/C Obligations are cash collateralized or reallocated pursuant to Section 2.16(d);
(and allocated among them ratably based on f) for purposes of determining:
(i) the amount of the total Commitments for purposes of SectionSections 2.01, 2.03(b) and 2.04(a), the Commitment of each Defaulting Lender shall be excluded therefrom (other than any portion of such Commitment pursuant to which there is then outstanding a Loan from such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralized); and
(dii) so long as such Revolving the applicable L/C Obligations of any Lender with respect to any Letter of Credit that is issued, increased (to the extent of the increase only) or renewed (but, for the avoidance of doubt, not with respect to any other applicable L/C Obligations relating to any other Letter of Credit) during the period in which there is a Defaulting Lender or the Swingline Exposure of any Lender with respect to any Swingline Loan made during the period in which there is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew or extend any Letter Commitment of Credit, unless in each case it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure or LC Exposure, as applicable, will be fully covered by the Revolving Commitments of the Non-Defaulting Lenders and/or cash collateral provided by the Borrower in accordance with Section 2.20(c), and participating interests in any such funded Swingline Loan or in any such issued, amended, reviewed or extended Letter of Credit will be allocated among the Non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate thereinbe deemed to be zero; and
(g) in the Administrative Agent’’s sole discretion:
(i) any prepayment of the principal amount of any Loans shall be applied solely to prepay the Loans of all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans of any Defaulting Lender; and
(ii) subject to Section 2.16(e)(iii). In , any amount payable to such Defaulting Lender pursuant to this Credit Agreement (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.12 or Section 3.06(b)) may, in lieu of being distributed to such Defaulting Lender, be retained by the event that Administrative Agent in a segregated non-interest bearing account and, subject to any applicable requirements of law, be applied at such time or times as may be determined by the Administrative Agent (xi) a Bankruptcy Event with respect first, pro rata, to a Revolving the payment of any amounts owing by such Defaulting Lender Parent shall have occurred following to the date hereof and for so long as such Bankruptcy Event shall continue Administrative Agent, applicable L/C Issuer or (y) the Swingline Lender hereunder, (ii) second, pro rata, to the payment of any amounts owing to the Borrowers or the Lenders as a result of any judgment of a court of competent jurisdiction obtained by any Borrower or any Issuing Bank has Lender against such Defaulting Lender as a good faith belief that any Revolving Lender has defaulted in fulfilling result of such Defaulting Lender’’s breach of its obligations under one or more other agreements in which this Credit Agreement and (iii) third, to such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan, and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless the Swingline Defaulting Lender or such Issuing Bank, as the case may be, shall have entered into arrangements with the Borrower or such Revolving Lender satisfactory to the Swingline Lender or such Issuing Bank, as the case may be, to defease any risk to it in respect otherwise directed by a court of such Lender hereundercompetent jurisdiction. In the event that the Administrative Agent, the Parent Borrower, each applicable L/C Issuer and the Swingline Lender and each Issuing Bank each agree agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, the Administrative Agent shall promptly notify each Lender (that such Lender has ceased to be a “Restored Lender”)Defaulting Lender and, then from and after the date of such notification, the Swingline Exposure and LC Exposure L/C Obligations of the Revolving Lenders shall be reallocated in accordance with their Applicable Percentages readjusted to reflect the inclusion of such Lender’’s Commitment and on such date such Restored Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Restored Lender to hold such Loans in accordance with its Applicable Dollar Facility Percentage (with the term “Applicable and Limited Currency Facility Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph, the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated including the Revolving Commitment of such Restored Lender but disregarding the Revolving Commitments of the Defaulting Lenders at such time).
Appears in 1 contract
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment facility fees shall cease continue to accrue on the unused amount of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a) only to the extent of the Revolving Credit Exposure of such Defaulting Lender (excluding any portion thereof constituting Swingline Exposure or LC Exposure of such Defaulting Lender that is subject to reallocation under clause (c)(i) below);
(b) the Revolving Commitment and the Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.0210.02); provided that any amendment, waiver or other modification requiring the consent of all Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 9.0210.02, require the consent of such Defaulting Lender in accordance with the terms hereof;
(c) if any Swingline Exposure or LC Exposure exists at the time such Revolving Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure (other than any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c)) and LC Exposure of such Defaulting Lender (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(e) and 2.05(f)) shall be reallocated among the Non-Defaulting Lenders in accordance with their respective Applicable Percentages (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph (c), the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated disregarding the Revolving Commitments of the Defaulting Lenders at such time) but only to the extent that (x) the sum of all Non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure (in each case, excluding the portion thereof referred to above) does not exceed the sum of all Non-Defaulting Lenders’ Revolving CommitmentsCommitments and (y) each Non-Defaulting Lenders’ Revolving Credit Exposure does not exceed its Revolving Commitment;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower Borrowers shall within one Business Day following notice by the Administrative Agent or an Issuing Bank (provided that such Issuing Bank shall immediately also notify the Administrative Agent) (A) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated as set forth in such clause and (B) second, cash collateralize for the benefit of the Issuing Banks the portion of such Defaulting Lender’s LC Exposure that has not been reallocated as set forth in such clause in accordance with the procedures set forth in Section 2.05(i) for so long as such LC Exposure is outstanding;
(iii) if the Borrower Borrowers cash collateralizes collateralize any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower Borrowers shall not be required to pay participation fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such Defaulting Lender is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and Section 2.12(b) shall be adjusted to give effect to such reallocation; and;
(v) if all or any portion of such Defaulting Lender’s Swingline Exposure that is subject to reallocation pursuant to clause (i) above is neither reallocated nor reduced pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of the Swingline Lender or any other Lender hereunder, all facility fees that otherwise would have been payable to such Defaulting Lender with respect to such portion of its Swingline Exposure shall be payable to the Swingline Lender until and to the extent that such Swingline Exposure is reallocated and/or reduced to zero; and
(vi) if all or any portion of such Defaulting Lender’s LC Exposure that is subject to reallocation pursuant to clause (i) above is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all facility fees that otherwise would have been payable to such Defaulting Lender with respect to such portion of its LC Exposure, and all participation fees payable under Section 2.12(b) with respect to such Defaulting Lender’s portion of its LC Exposure Exposure, shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s portion of the LC Exposure of such Defaulting Lender attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender, the no Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless in each case it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure or LC Exposure, as applicable, will be fully covered by the Revolving Commitments of the Non-Defaulting Lenders and/or cash collateral provided by the Borrower Borrowers in accordance with Section 2.20(c)clause (c) above, and participating interests in any such funded Swingline Loan or in any such issued, amended, reviewed renewed or extended Letter of Credit will be allocated among the Non-Defaulting Lenders in a manner consistent with Section 2.20(c)(iclause (c)(i) above (and such Defaulting Lender shall not participate therein). .
(e) In the event that (xi) a Bankruptcy Event with respect to a Revolving Lender Parent shall have occurred following the date hereof and for so long as such Bankruptcy Event shall continue or (yii) the Swingline Lender or any Issuing Bank has a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan, and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless the Swingline Lender or such Issuing Bank, as the case may be, shall have entered into arrangements with the applicable Borrower or such Revolving Lender satisfactory to the Swingline Lender or such Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. .
(f) In the event that the Administrative Agent, the Borrower, Company the Swingline Lender and each Issuing Bank each agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender (a “Restored Lender”), then the Swingline Exposure and LC Exposure of the Revolving Lenders shall be reallocated in accordance with their Applicable Percentages readjusted to reflect the inclusion of such ▇▇▇▇▇▇’s Revolving Commitment and on such date such Restored Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Restored Lender to hold such Loans in accordance with its Applicable Percentage (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph, the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated including the Revolving Commitment of such Restored Lender but disregarding the Revolving Commitments of the Defaulting Lenders at such time).
Appears in 1 contract
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment facility fees shall cease continue to accrue on the unused amount of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a) only to the extent of the Revolving Credit Exposure of such Defaulting Lender (excluding any portion thereof constituting Swingline Exposure or LC Exposure of such Defaulting Lender that is subject to reallocation under clause (c)(i) below);
(b) the Commitment, the Revolving Commitment Credit Exposure and Revolving Exposure the aggregate principal amount of outstanding Competitive Loans of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided that any amendment, waiver or other modification requiring the consent of all Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereof;
(c) if any Swingline Exposure or LC Exposure exists at the time such Revolving Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure (other than any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.05(c)) and LC Exposure of such Defaulting Lender (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.06(d) and 2.06(f)) shall be reallocated among the Non-Defaulting Lenders in accordance with their respective Applicable Percentages (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph (c), the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated disregarding the Revolving Commitments of the Defaulting Lenders at such time) but only to the extent that the sum of all Non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure (in each case, excluding the portion thereof referred to above) does not exceed the sum of all Non-Defaulting Lenders’ Revolving Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower Borrowers shall within one Business Day following notice by the Administrative Agent (A) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated as set forth in such clause and (B) second, cash collateralize for the benefit of the Issuing Banks the portion of such Defaulting Lender’s LC Exposure that has not been reallocated as set forth in such clause in accordance with the procedures set forth in Section 2.05(i2.06(i) for so long as such LC Exposure is outstanding;
(iii) if the Borrower Borrowers cash collateralizes collateralize any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower Borrowers shall not be required to pay participation fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such Defaulting Lender is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and Section 2.12(b) shall be adjusted to give effect to such reallocation; and;
(v) if all or any portion of such Defaulting Lender’s Swingline Exposure that is subject to reallocation pursuant to clause (i) above is neither reallocated nor reduced pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of the Swingline Lender or any other Lender hereunder, all facility fees that otherwise would have been payable to such Defaulting Lender with respect to such portion of its Swingline Exposure shall be payable to the Swingline Lender until and to the extent that such Swingline Exposure is reallocated and/or reduced to zero; and
(vi) if all or any portion of such Defaulting Lender’s LC Exposure that is subject to reallocation pursuant to clause (i) above is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all facility fees that otherwise would have been payable to such Defaulting Lender with respect to such portion of its LC Exposure, and all participation fees payable under Section 2.12(b) with respect to such Defaulting Lender’s portion of its LC Exposure Exposure, shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s portion of the LC Exposure of such Defaulting Lender attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless unless, in each case case, it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure or LC Exposure, as applicable, will be fully covered by the Revolving Commitments of the Non-Defaulting Lenders and/or cash collateral provided by the Borrower Borrowers in accordance with Section 2.20(c)clause (c) above, and participating interests in any such funded Swingline Loan or in any such issued, amended, reviewed renewed or extended Letter of Credit will be allocated among the Non-Defaulting Lenders in a manner consistent with Section 2.20(c)(iclause (c)(i) above (and such Defaulting Lender shall not participate therein). In the event that (x) a Bankruptcy Event with respect to a Revolving Lender Parent shall have occurred following the date hereof and for so long as such Bankruptcy Event shall continue or (y) the Swingline Lender or any Issuing Bank has a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan, and no such Issuing Bank shall not be required to issue, amend, renew or extend any Letter of Credit, unless the Swingline Lender or such Issuing Bank, as the case may be, shall have entered into arrangements with the Borrower Borrowers or such Revolving the applicable Lender satisfactory to the Swingline Lender or such Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the BorrowerCompany, the Swingline Lender and each Issuing Bank each agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender (a “Restored Lender”), then the Swingline Exposure and LC Exposure of the Revolving Lenders shall be reallocated in accordance with their Applicable Percentages readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Restored Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Restored Lender to hold such Loans in accordance with its Applicable Percentage (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph, the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated including the Revolving Commitment of such Restored Lender but disregarding the Revolving Commitments of the Defaulting Lenders at such time).
Appears in 1 contract
Sources: Credit Agreement (Verisign Inc/Ca)
Defaulting Lenders. Notwithstanding any provision of this Agreement to If a Lender becomes, and during the contraryperiod it remains, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lenderapply:
(a) commitment the facility fees set forth in Section 2.3 shall cease to accrue on the unused amount of the Revolving unutilized Commitment of such Defaulting Lender pursuant to as provided in said Section 2.12(a)2.3;
(b) to the Revolving Commitment and Revolving Exposure extent permitted by applicable law, any prepayment of Loans shall, if the Borrower so directs at the time of making such prepayment, be applied to the Loans of other Lenders as if such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided that any amendment, waiver or other modification requiring the consent of all Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereofhad no Loans outstanding;
(c) if any Swingline Exposure or LC Exposure exists Swing Line Loan is outstanding at the time such Revolving a Lender becomes a Defaulting Lender then:then (such Defaulting Lender’s Commitment Percentage of the outstanding principal amount of the Swing Line Loans being referred to as the “Swing Line Portion”):
(i) all or any part of the Swingline Exposure and LC Exposure Swing Line Portion of such Defaulting Lender shall will, subject to the limitation in the first proviso below, automatically be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Non-Defaulting Lenders pro rata in accordance with their respective Applicable Percentages Commitments; provided that (with i) the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph (c), the percentage sum of the Aggregate Revolving Commitment represented by such total outstanding principal amounts of each Non-Defaulting Lender’s Revolving Credit Loans and its Commitment Percentage of Swing Line Loans may not in any event exceed the Commitment of such Non-Defaulting Lender as in effect at the time of such reallocation calculated disregarding and (ii) neither such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim the Revolving Commitments of Borrower, the Managing Administrative Agent, any Swing Line Lender or any other Lender may have against such Defaulting Lenders at Lender or cause such timeDefaulting Lender to be a Non-Defaulting Lender; and
(ii) but only to the extent that any portion (the sum “unreallocated portion”) of all Non-the Defaulting Lender’s Swing Line Portion cannot be so reallocated, whether by reason of the proviso in clause (a) above or otherwise, the Borrower will, not later than five Business Days after demand by the Managing Administrative Agent (at the direction of the Swing Line Lenders’ Revolving Exposures plus ) either, at its option, (A) prepay (subject to clause (d) below) in full the unreallocated portion thereof or (B) cash collateralize such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the sum of all Non-Defaulting Lenders’ Revolving Commitments;
Swing Line Portion (ii) if the after giving effect to any partial reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent (A) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (B) second, cash collateralize for the benefit of the Issuing Banks the portion of such Defaulting Lender’s LC Exposure that has not been reallocated in accordance with the procedures set forth in Section 2.05(i) for so long as such LC Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower shall not be required to pay participation fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such Defaulting Lender is reallocated pursuant to clause (i) above) in accordance with procedures reasonably acceptable to the Managing Administrative Agent and the Swing Line Lenders for so long as such Swing Line Portion is outstanding, then such prepayment and cash collateralization to be applied ratably to the outstanding Swing Line Loans of all of the Swing Line Lenders (and, until such prepayment and cash collateralization shall occur, the facility fees that would otherwise have been payable to such Defaulting Lender but for the Lenders pursuant to Sections 2.12(a) last sentence of Section 2.3 and 2.12(bSection 2.26(a) shall instead be adjusted paid ratably to give effect to such reallocation; andthe Swing Line Lenders).
(vd) if all any amount paid by the Borrower for the account of a Defaulting Lender under this Agreement (whether on account of principal, interest, fees, indemnity payments or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (iother amounts) will not be paid or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all participation fees payable under Section 2.12(b) with respect distributed to such Defaulting Lender’s LC Exposure shall , but will instead be payable retained by the Managing Administrative Agent in a segregated non-interest bearing account until (subject to Section 2.27) the termination of the Commitments and payment in full of all obligations of the Borrower hereunder and will be applied by the Managing Administrative Agent, to the Issuing Banks (and allocated among them ratably based on fullest extent permitted by law, to the amount making of payments from time to time in the following order of priority: first to the payment of any amounts owing by such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and Lender to the extent that Managing Administrative Agent under this Agreement, second to the payment of any amounts owing by such LC Exposure is reallocated and/or Defaulting Lender to the Swing Line Lenders (pro rata as to the respective amounts owing to each of them) under this Agreement, third if so determined by the Managing Administrative Agent or requested by a Swing Line Lender, held in such account as cash collateralized; andcollateral for future funding obligations of the Defaulting Lender in respect of any existing or future participating interest in any Swing Line Loan, fourth, to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Managing Administrative Agent, fifth, if so determined by the Managing Administrative Agent and the Borrower, held in such account as cash collateral for future funding obligations of the Defaulting Lender in respect of any Loans under this Agreement, and sixth after the termination of the Commitments and payment in full of all obligations of the Borrower hereunder, to pay amounts owing under this Agreement to such Defaulting Lender or as a court of competent jurisdiction may otherwise direct.
(de) so long as such Revolving any Lender is a Defaulting Lender, the Swingline no Swing Line Lender shall not be required to fund any Swingline Swing Line Loan and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless in each case it is satisfied that the related exposure and of the Defaulting Lender’s then outstanding Swingline Exposure or LC Exposure, as applicable, Lender will be fully 100% covered by the Revolving Commitments of the Non-Defaulting Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 2.20(c)paragraph (c)(ii) of this Section, and participating interests in any such funded Swingline newly made Swing Line Loan or in any such issued, amended, reviewed or extended Letter of Credit will shall be allocated among the Nonnon-Defaulting Lenders in a manner consistent with paragraph (c)(i) and (c)(ii) of this Section.
(f) the Borrower may (a) terminate the unused amount of the Commitment of a Defaulting Lender upon not less than one (1) Business Day’s prior notice to the Managing Administrative Agent (which will promptly notify the Lenders hereof), and in such event the provisions of this Section 2.20(c)(i) (and will apply to all amounts thereafter paid by the Borrower for the account of such Defaulting Lender shall not participate thereinunder this Agreement (whether on account of principal, interest, fees, indemnity or other amounts). In the event ; provided that (x) a Bankruptcy Event with respect to a Revolving Lender Parent shall have occurred following the date hereof and for so long as such Bankruptcy Event shall continue or (y) the Swingline Lender or any Issuing Bank has a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall termination will not be required deemed to fund be a waiver or release of any Swingline Loan, and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless the Swingline Lender or such Issuing Bank, as the case may be, shall have entered into arrangements with the Borrower or such Revolving Lender satisfactory to the Swingline Lender or such Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, claim the Borrower, the Swingline Managing Administrative Agent, any Swing Line Lender and each Issuing Bank each agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender (a “Restored Lender”), then the Swingline Exposure and LC Exposure of the Revolving Lenders shall be reallocated in accordance with their Applicable Percentages and on such date such Restored Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Restored Lender to hold such Loans in accordance with its Applicable Percentage (with the term “Applicable Percentage” meaning, with respect to or any Lender for purposes of reallocations to be made pursuant to this paragraph, the percentage of the Aggregate Revolving Commitment represented by may have against such Defaulting Lender’s Revolving Commitment at the time of such reallocation calculated including the Revolving Commitment of such Restored Lender but disregarding the Revolving Commitments of the Defaulting Lenders at such time).
Appears in 1 contract
Sources: Credit Agreement (Mastercard Inc)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unused amount unfunded portion of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a2.11(a);
(b) the Revolving Commitment and Revolving Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided that any amendment, waiver or other modification requiring the consent of all Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereof;
(c) if any Swingline Exposure or LC Exposure exists at the time such Revolving a Lender becomes is a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the Non-Defaulting Lenders in accordance with their respective Applicable Percentages (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph (c), the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated disregarding the Revolving Commitments of the Defaulting Lenders at such time) but only to the extent that the sum of all Non-Defaulting Lenders’ Revolving Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the sum of all Non-Defaulting Lenders’ Revolving Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent (Ai) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (B) secondor, if agreed by the Swingline Lender, cash collateralize for the benefit Swingline Exposure of the Issuing Banks Defaulting Lender on terms satisfactory to the portion of Swingline Lender and (ii) cash collateralize such Defaulting Lender’s LC Exposure that has not been reallocated in accordance with the procedures set forth in Section 2.05(i2.05(j) for so long as such LC Exposure is outstanding;
(iiic) the Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Lender shall not be required to issue, amend or increase any Letter of Credit unless it is satisfied that cash collateral will be provided by the Borrower in accordance with Section 2.20(a); and
(d) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (iib) above, the Borrower shall not be required to pay participation any fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such Defaulting Lender is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(b) shall be adjusted to give effect to such reallocation; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all participation fees payable under Section 2.12(b2.11(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to during the Issuing Banks (and allocated among them ratably based on the amount of period such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless in each case it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure or LC Exposure, as applicable, will be fully covered by the Revolving Commitments of the Non-Defaulting Lenders and/or cash collateral provided by the Borrower in accordance with Section 2.20(c), and participating interests in any such funded Swingline Loan or in any such issued, amended, reviewed or extended Letter of Credit will be allocated among the Non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein). In the event that (x) a Bankruptcy Event with respect to a Revolving Lender Parent shall have occurred following the date hereof and for so long as such Bankruptcy Event shall continue or (y) the Swingline Lender or any Issuing Bank has a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan, and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless the Swingline Lender or such Issuing Bank, as the case may be, shall have entered into arrangements with the Borrower or such Revolving Lender satisfactory to the Swingline Lender or such Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the Borrower, the Swingline Lender and each Issuing Bank each agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender (a “Restored Lender.”), then the Swingline Exposure and LC Exposure of the Revolving Lenders shall be reallocated in accordance with their Applicable Percentages and on such date such Restored Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Restored Lender to hold such Loans in accordance with its Applicable Percentage (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph, the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated including the Revolving Commitment of such Restored Lender but disregarding the Revolving Commitments of the Defaulting Lenders at such time).
Appears in 1 contract
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment the facility fees shall cease continue to accrue on the unused amount of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a) only to the extent of the Revolving Credit Exposure of such Defaulting Lender (excluding any portion thereof constituting Swingline Exposure or LC Exposure of such Defaulting Lender that is subject to reallocation under clause (c)(i) below);
(b) the Revolving Commitment Commitments and Revolving Exposure Credit Exposures of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.0211.02); provided that any amendment, waiver or other modification requiring the consent of all Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 9.0211.02, require the consent of such Defaulting Lender in accordance with the terms hereof;
(c) if any Swingline Exposure or LC Exposure exists at the time such Revolving Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure Exposures and LC Exposure Exposures of such Defaulting Lender (other than (A) any portion of such Swingline Exposure (1) referred to in clause (b) of the definition of the terms Tranche One Swingline Exposure or Tranche Two Swingline Exposure or (2) with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c) and (B) any portion of such LC Exposure attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(d) and 2.05(e)) shall be reallocated among the Nonnon-Defaulting Tranche One Lenders or non-Defaulting Tranche Two Lenders, as applicable, in accordance with proportion to their respective Applicable Tranche One Percentages (with the term “Applicable Percentage” meaningor Tranche Two Percentages, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph (c)as applicable, the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated disregarding the Revolving Commitments of the Defaulting Lenders at such time) but only to the extent that (A) the sum of all Nonnon-Defaulting Tranche One Lenders’ Tranche One Revolving Credit Exposures plus such Defaulting Lender’s Tranche One Swingline Exposure and Tranche One LC Exposure does not exceed the total of all non-Defaulting Tranche One Lenders’ Tranche One Commitments and (B) the sum of all Nonnon-Defaulting Tranche Two Lenders’ Tranche Two Revolving Credit Exposures plus such Defaulting Lender’s Tranche Two Swingline Exposure and Tranche Two LC Exposure does not exceed the total of all non-Defaulting Tranche Two Lenders’ Tranche Two Commitments; provided that this clause (c)(i) shall not apply if, at the time the reallocation provided for herein would otherwise have been made, an Event of Default has occurred and is continuing;
(ii) if the reallocation reallocations described in clause (i) above cannot, or can only partially, be effected, the Borrower shall Borrowers shall, within one Business Day following notice by the Administrative Agent (Aafter giving effect to any partial reallocation pursuant to clause (i) above), (x) first, prepay the portion of such Defaulting Lender’s Swingline Exposure (other than any portion thereof referred to in the parenthetical in such clause (i)) that has not been reallocated and (By) second, cash collateralize for the benefit of the Issuing Banks the Borrowers’ obligations corresponding to the portion of such Defaulting Lender’s LC Exposure (other than any portion thereof referred to in the parenthetical in such clause (i)) that has not been reallocated reallocated, such cash collateralization to be in accordance with the procedures set forth in Section 2.05(i) for so long as such LC Exposure is outstanding;
(iii) if the Borrower Borrowers cash collateralizes collateralize any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower Borrowers shall not be required to pay participation any fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such Defaulting Lender is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and Section 2.12(b) shall be adjusted in accordance with the amounts of such LC Exposure allocated to give effect to such reallocation; andthe non-Defaulting Lenders;
(v) if all or any portion of such Defaulting Lender’s Swingline Exposure that is subject to reallocation pursuant to clause (i) above is neither reallocated nor reduced pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of the Swingline Lenders or any other Lender hereunder, all facility fees that otherwise would have been payable under Section 2.12(a) to such Defaulting Lender with respect to such portion of its Swingline Exposure shall be payable to the applicable Swingline Lender until and to the extent that such Swingline Exposure is reallocated and/or reduced to zero; and
(vi) if all or any portion of such Defaulting Lender’s LC Exposure that is subject to reallocation pursuant to clause (i) above is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any the Issuing Bank Banks or any other Lender hereunder, all participation facility fees that otherwise would have been payable under Section 2.12(a) to such Defaulting Lender with respect to such portion of its LC Exposure, and all letter of credit fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure Exposure, shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s portion of the LC Exposure of such Defaulting Lender attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender, the no Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless in each case it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure or LC Exposure, as applicable, will be fully covered by the Revolving Commitments of the Non-Defaulting Lenders and/or cash collateral provided by the Borrower in accordance with Section 2.20(c), and participating interests in any such funded Swingline Loan or in any such issued, amended, reviewed or extended Letter of Credit will be allocated among the Non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein). In the event that (x) a Bankruptcy Event with respect to a Revolving Lender Parent shall have occurred following the date hereof and for so long as such Bankruptcy Event shall continue or (y) the Swingline Lender or any Issuing Bank has a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan, and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless it is satisfied that the Defaulting Lender’s Swingline Exposure and LC Exposure will be 100% reallocated to the non-Defaulting Lenders and/or cash collateralized as provided above, and participating interests in any newly made Swingline Loan or any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders of the applicable Tranche in a manner consistent with Section 2.22(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event or a Bail-In Action with respect to a parent entity of any Lender shall occur following the Restatement Effective Date and for so long as such event shall continue or (ii) a Swingline Lender or an Issuing Bank has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, such Swingline Lender shall not be required to fund any Swingline Loan and such Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless such Swingline Lender or such Issuing Bank, as the case may be, shall have entered into arrangements with the Borrower Borrowers or such Revolving Lender Lender, reasonably satisfactory to the such Swingline Lender or such Issuing Bank, as the case may be, to defease eliminate any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the BorrowerCompany, the each Swingline Lender and each Issuing Bank each shall agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender (a “Restored Lender”), then the Swingline Exposure Exposures and LC Exposure Exposures of the Revolving Lenders shall be reallocated in accordance with their Applicable Percentages readjusted to reflect the inclusion of such Lender’s Commitments and on such date such Restored Lender shall purchase at par such of the Revolving Tranche One Loans and/or Tranche Two Loans of the other Revolving Lenders (other than Lenders, and such funded participations in Swingline Loans) Loans and LC Disbursements, as the Administrative Agent shall determine may to be necessary in order for such Restored Lender the Lenders to hold such Loans and funded participations in accordance with its Applicable Percentage (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph, the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated including the Revolving Commitment of such Restored Lender but disregarding the Revolving Commitments of the Defaulting Lenders at such time)their applicable Tranche Percentages.
Appears in 1 contract
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees the Revolving Commitment Fees shall cease to accrue on the unused amount of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a)Lender;
(b) the Revolving Commitment and the Revolving Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.0210.02); provided that any amendment, waiver or other modification requiring the consent of all Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 9.0210.02, require the consent of such Defaulting Lender in accordance with the terms hereof;
(c) if any Swingline Exposure or LC Exposure exists at the time such any Revolving Lender becomes a Defaulting Lender Lender, then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.20(d) and 2.20(f)) shall be reallocated among the Non-Defaulting Revolving Lenders in accordance with their respective Applicable Percentages (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph (c), the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated disregarding the Revolving Commitments of the Defaulting Lenders at such time) but only to the extent that the sum of all Non-Defaulting Revolving Lenders’ Revolving Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure (excluding the portion thereof referred to above) does not exceed the sum of all Non-Defaulting Revolving Lenders’ Revolving Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower Borrowers shall within one Business Day following written notice by the Administrative Agent (A) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (B) second, cash collateralize for the benefit of the Issuing Banks the portion of such Defaulting Lender’s LC Exposure (other than any portion thereof referred to in the parenthetical in such clause (i)) that has not been reallocated as set forth in such clause in accordance with the procedures set forth in Section 2.05(i2.20(n) for so long as such LC Exposure is outstanding;
(iii) if the Borrower Borrowers cash collateralizes collateralize any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower Borrowers shall not be required to pay participation fees to such Defaulting Lender pursuant to Section 2.12(b2.09(c) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such Defaulting Lender is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a2.09(a) and 2.12(b2.09(c) shall be adjusted to give effect to such reallocation; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure that is subject to reallocation pursuant to clause (i) above is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all participation fees payable under Section 2.12(b2.09(c) with respect to such Defaulting Lender’s portion of its LC Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s portion of the LC Exposure of such Defaulting Lender attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless unless, in each case case, it is satisfied that the related exposure and the such Defaulting Lender’s then outstanding Swingline LC Exposure or LC Exposure, as applicable, will be fully covered by the Revolving Commitments of the Non-Defaulting Revolving Lenders and/or cash collateral provided by the Borrower Borrowers in accordance with Section 2.20(c)clause (c) above, and participating interests in any such funded Swingline Loan or in any such issued, amended, reviewed renewed or extended Letter of Credit will be allocated among the Non-Defaulting Revolving Lenders in a manner consistent with Section 2.20(c)(iclause (c)(i) above (and such Defaulting Lender shall not participate therein). In the event that (x) a Bankruptcy Event with respect to a Lender Parent of a Revolving Lender Parent shall have occurred following the date hereof Effective Date and for so long as such Bankruptcy Event shall continue or (y) the Swingline Lender or any Issuing Bank has a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Revolving Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan, and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless the Swingline Lender or unless, in each case, such Issuing Bank, as the case may be, Bank shall have entered into arrangements with the Company and any other applicable Borrower or such Revolving Lender satisfactory to the Swingline Lender or such Issuing Bank, as the case may be, Bank to defease any risk to it in respect of such Revolving Lender hereunder. In the event that the Administrative Agent, the Borrower, the Swingline Lender Company and each Issuing Bank each agree that a Defaulting Lender that is a Revolving Lender has adequately remedied all matters that caused such Revolving Lender to be a Defaulting Lender (a “Restored Lender”), then the Swingline Exposure and LC Exposure of the Revolving Lenders shall be reallocated in accordance with their Applicable Percentages readjusted to reflect the inclusion of such Revolving Lender’s Revolving Commitment and on such date such Restored Revolving Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may to be necessary in order for such Restored Revolving Lender to hold such Revolving Loans in accordance with its Applicable Percentage Percentage, and such Revolving Lender shall thereupon cease to be a Defaulting Lender (but shall not be entitled to receive any Revolving Commitment Fees accrued during the period when it was a Defaulting Lender, and all amendments, waivers or modifications effected without its consent in accordance with the term “Applicable Percentage” meaningprovisions of Section 10.02 and this Section during such period shall be binding on it). The rights and remedies against, and with respect to to, a Defaulting Lender under this Section are in addition to, and cumulative and not in limitation of, all other rights and remedies that the Administrative Agent, any Issuing Bank, any Lender for purposes of reallocations to be made pursuant to this paragraphor the Borrowers may at any time have against, the percentage of the Aggregate Revolving Commitment represented by or with respect to, such Defaulting Lender’s Revolving Commitment at the time of such reallocation calculated including the Revolving Commitment of such Restored Lender but disregarding the Revolving Commitments of the Defaulting Lenders at such time).
Appears in 1 contract
Sources: Credit Agreement (Trimble Inc.)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then, until such time as such Lender is no longer a Defaulting Lender or is removed as a Lender pursuant to Section 2.19, the following provisions shall apply:
(a) if any Swingline Exposure or LC Obligations exist at the time a Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unused amount of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a);
(b) the Revolving Commitment and Revolving Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided that any amendment, waiver or other modification requiring the consent of all Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereof;
(c) if any Swingline Exposure or LC Exposure exists at the time such Revolving Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the Non-Defaulting Lenders in accordance with their respective Applicable Percentages (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph (c), the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated disregarding the Revolving Commitments of the Defaulting Lenders at such time) but only to the extent that the sum of all Non-Defaulting Lenders’ Revolving Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the sum of all Non-Defaulting Lenders’ Revolving Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent (AA)(i) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (Bii) second, cash collateralize for the benefit of the Issuing Banks the portion of such Defaulting Lender’s LC Exposure that has not been reallocated Obligations in accordance with the procedures set forth in Section 2.05(i2.06(g) for so long as until the date such LC Exposure is Obligations are no longer outstanding;
, or (iiiB) if enter into such other arrangements satisfactory to the Administrative Agent, the L/C Issuer, the Swingline Lender, and the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower shall not be required to pay participation fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such portion of such their respective exposures to the Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such Defaulting Lender is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(b) shall be adjusted to give effect to such reallocation; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all participation fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(db) so long as such Revolving any Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Bank the L/C Issuer shall not be required to issue, amend, renew amend or extend increase any Letter of Credit, Credit unless in each case it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure or LC Exposure, as applicable, cash collateral will be fully covered by the Revolving Commitments of the Non-Defaulting Lenders and/or cash collateral provided by the Borrower in accordance with Section 2.20(c), and participating interests in any such funded Swingline Loan or in any such issued, amended, reviewed or extended Letter of Credit will be allocated among the Non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i2.20(a) (and such Defaulting Lender shall not participate therein). In the event that (x) a Bankruptcy Event with respect to a Revolving Lender Parent shall have occurred following the date hereof and for so long as such Bankruptcy Event shall continue or (y) the Swingline Lender or any Issuing Bank has a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan, and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless the Swingline Lender or such Issuing Bank, other arrangements as the case may be, shall have entered into arrangements with the Borrower or such Revolving Lender are satisfactory to the Swingline Lender or such Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the BorrowerL/C Issuer, the Swingline Lender Lender, and each Issuing Bank each agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender the Borrower); and
(a “Restored Lender”), then c) for the Swingline Exposure and LC Exposure avoidance of the Revolving Lenders shall be reallocated in accordance with their Applicable Percentages and on such date such Restored Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Restored Lender to hold such Loans in accordance with its Applicable Percentage (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraphdoubt, the percentage of the Aggregate Revolving Commitment represented by such Borrower shall retain and reserve its rights and remedies respecting each Defaulting Lender’s Revolving Commitment at the time of such reallocation calculated including the Revolving Commitment of such Restored Lender but disregarding the Revolving Commitments of the Defaulting Lenders at such time).
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