Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender: (a) fees shall cease to accrue on the unfunded portion of the Commitments of such Defaulting Lender pursuant to Section 2.12(a); (b) such Defaulting Lender shall not have the right to vote on any issue on which voting is required (other than to the extent expressly provided in Section 9.02(b)) and the Commitment and Revolving Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or the Supermajority Revolving Lenders have taken or may take any action hereunder; (c) if any Swingline Exposure or LC Exposure exists at the time 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 of the applicable Class in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Exposures under such Class of Commitments plus such Defaulting Lender’s Swingline Exposure and LC Exposure under such Class of Commitments does not exceed the total of all non-Defaulting Lenders’ Commitments of such Class, (y) no non-Defaulting Lender’s Revolving Exposure under such Class of Commitments is increased above such Lender’s Commitment of such Class as a result thereof and (z) no Event of Default has then occurred and is continuing; (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 (x) first, in the case of the U.S. Borrower, prepay such Swingline Exposure and (y) second, Cash Collateralize, for the benefit of the applicable Issuing Bank, such Borrowers’ obligations corresponding to such Defaulting Lender’s LC Exposure under the applicable Class of Commitments (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.06(k) for so long as such LC Exposure is outstanding; (iii) if a Borrower Cash Collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, such Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is Cash Collateralized; (iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(b) shall be adjusted in accordance with such non-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 Lender hereunder, all letter of credit fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank until such LC Exposure is reallocated and/or Cash Collateralized; and (d) so long as such Lender is a Defaulting Lender, the applicable Issuing Bank under the applicable Facility shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or Cash Collateral will be provided by the applicable Borrower(s) in accordance with Section 2.20(c), and participating interests in any such newly made Swingline Loan or newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to the Parent of any Lender shall occur following the Second Amendment Effective Date and for so long as such event shall continue or (ii) any Issuing Bank or the Swingline Lender has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, such Issuing Bank shall not be required to issue, amend or increase any Letter of Credit and the Swingline Lender shall not be required to fund any Swingline Loan, unless such Issuing Bank or the Swingline Lender, as the case may be, shall have entered into arrangements with the Borrowers or such Lender, satisfactory to such Issuing Bank or the Swingline Lender, as the case may be, to defease any risk in respect of such Lender hereunder. In the event that each of the Administrative Agent, the Borrowers, the applicable Issuing Banks and, in the case of the U.S. Facility, the Swingline Lender agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and/or LC Exposure of the Lenders under the applicable Facility shall be readjusted to reflect the inclusion of such Lender’s Commitment and on the date of such readjustment such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage.
Appears in 3 contracts
Sources: Credit Agreement (Levi Strauss & Co), Credit Agreement (Levi Strauss & Co), Credit Agreement (Levi Strauss & Co)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:.
(a) fees shall cease to accrue on the unfunded portion of the Commitments Domestic Revolving Commitment and the Canadian Revolving Subcommitment of such Defaulting Lender pursuant to Section 2.12(a);
(b) such Defaulting Lender shall not have the right to vote on any issue on which voting is required (other than to the extent expressly provided in Section 9.02(b)) Commitments and the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required all Lenders or the Supermajority Revolving Required Lenders have taken or may take any action hereunderhereunder (including any consent to any amendment or waiver pursuant to Section 9.02), provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lender;
(c) if any Swingline Exposure, Ex-Im Revolving Exposure or LC Exposure exists at the time a Lender becomes a Defaulting Lender then:
(i) all or any part of the such Swingline Exposure, Ex-Im Revolving Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders of the applicable Class that are Domestic Revolving Lenders, Ex-Im Participants or Canadian Revolving Lenders, as applicable, in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Exposures under such Class of Commitments plus such Defaulting Lender’s Swingline Exposure, Ex-Im Revolving Exposure and LC Exposure under such Class of Commitments does not exceed the total of all non-Defaulting Lenders’ Revolving Commitments of such Class, and (y) no non-Defaulting Lender’s Revolving Exposure under the conditions set forth in Section 4.02 are satisfied at such Class of Commitments is increased above such Lender’s Commitment of such Class as a result thereof and (z) no Event of Default has then occurred and is continuing;time; 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 (x) first, in the case of the U.S. Borrower, prepay such Swingline Exposure and Ex-Im Revolving Exposure and (y) second, Cash Collateralize, for the benefit of the applicable Issuing Bank, such Borrowers’ obligations corresponding to cash collateralize such Defaulting Lender’s LC Exposure under the applicable Class of Commitments (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.06(k2.06(j) for so long as such LC Exposure is outstanding;
(iii) if a any Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) aboveSection 2.20(c), such Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is Cash Collateralizedcash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) aboveSection 2.20(c), then the fees payable to the Lenders pursuant to Sections 2.12(a) and Section 2.12(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; andor
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither cash collateralized nor reallocated nor Cash Collateralized pursuant to clause (i) or (ii) aboveSection 2.20(c), then, without prejudice to any rights or remedies of any Issuing Bank or any Lender hereunder, all facility fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable such Issuing Bank until such LC Exposure is reallocated cash collateralized and/or Cash Collateralized; andreallocated;
(d) so long as such Lender is a Defaulting Lender, the applicable no Issuing Bank under the applicable Facility shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or Cash Collateral cash collateral will be provided by the applicable Borrower(s) Borrower in accordance with Section 2.20(c), and participating interests in any such newly made Swingline Loan or newly issued or increased Letter of Credit or newly made Swingline Loan or Ex-Im Revolving Loan shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender Lenders shall not participate therein). If ; and
(ie) a Bankruptcy Event with respect to the Parent of any Lender shall occur following the Second Amendment Effective Date and for so long as such event shall continue or (ii) any Issuing Bank or the Swingline Lender has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, such Issuing Bank shall not be required to issue, amend or increase any Letter of Credit and the Swingline Lender shall not be required to fund any Swingline Loan, unless such Issuing Bank or the Swingline Lender, as the case may be, shall have entered into arrangements with the Borrowers or such Lender, satisfactory to such Issuing Bank or the Swingline Lender, as the case may be, to defease any risk in respect of such Lender hereunder. In the event and on the date that each of the Administrative AgentAgents, the Ex-Im Revolving Lender, the Borrowers, the applicable Issuing Banks and, in the case of the U.S. Facility, and the Swingline Lender agrees Lenders agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure, Ex-Im Revolving Exposure and/or and LC Exposure of the other Lenders under the applicable Facility shall be readjusted to reflect the inclusion of such Lender’s Commitment Revolving Commitments and on the such date of such readjustment such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage.
Appears in 3 contracts
Sources: Credit Agreement (Park Ohio Industries Inc/Oh), Credit Agreement (Park Ohio Industries Inc/Oh), Credit Agreement (Park Ohio Holdings Corp)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) fees shall cease to accrue on the unfunded portion of the Commitments Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a);
(b) such Defaulting Lender shall not have the right to vote on any issue on which voting is required (other than to the extent expressly provided in Section 9.02(b)) and the Commitment Revolving Commitments, LC Exposure and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or the Supermajority Revolving Lenders have taken or may take any action hereunderhereunder (including any consent to any amendment or waiver pursuant to Section 9.02), provided that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender affected thereby;
(c) if any Swingline Exposure or LC Exposure exists at the time a Lender becomes a Defaulting Lender then:
(i) all or any part of the such Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders of the applicable Class in accordance with their respective Applicable Percentages but only to the extent (xA) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures under such Class of Commitments plus such Defaulting Lender’s Swingline Exposure and LC Exposure under such Class of Commitments does not exceed the total of all non-Defaulting Lenders’ Commitments Revolving Commitments, (B) the conditions set forth in Section 4.02 are satisfied at the time of such Classreallocation (and, unless the Borrower shall have otherwise notified the Administrative Agent at such time, the Borrower shall be deemed to have represented and warranted that such conditions are satisfied at such time), and (yC) no nonsuch reallocation does not cause the aggregate Revolving Credit Exposure of any Non-Defaulting Lender to exceed such Non-Defaulting Lender’s Revolving Exposure under such Class of Commitments is increased above such Lender’s Commitment of such Class as a result thereof and (z) no Event of Default has then occurred and is continuingCommitment;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the applicable Borrower shall within one five Business Day Days following notice by the Administrative Agent (x) first, in the case of the U.S. Borrower, prepay such Swingline Exposure and (y) second, Cash Collateralize, cash collateralize for the benefit of the applicable Issuing Bank, such Borrowers’ Bank only the Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure under the applicable Class of Commitments (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.06(k2.06(j) for so long as such LC Exposure is outstanding;
(iii) if a the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, such the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is Cash Collateralizedcash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections Section 2.12(a) and Section 2.12(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither cash collateralized nor reallocated nor Cash Collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any the Issuing Bank or any other Lender hereunder, all facility fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Revolving Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank until such LC Exposure is reallocated cash collateralized and/or Cash Collateralizedreallocated; and
(d) so long as such Lender is a Defaulting Lender, the applicable Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Bank under the applicable Facility shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Revolving Commitments of the non-Defaulting Lenders and/or Cash Collateral cash collateral will be provided by the applicable Borrower(s) Borrower in accordance with Section 2.20(c2.21(c), and participating interests in any such newly made Swingline Loan or newly issued or increased Letter of Credit or newly made Swingline Loan shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i2.21(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to the a Parent of any Lender shall occur following the Second Amendment Effective Date date hereof and for so long as such event shall continue or (ii) any Issuing Bank or the Swingline Lender or the Issuing Bank has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend creditcredit (the Lender in such case, such an “Affected Lender”), the Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit and to the extent such exposure would have been supported by such Affected Lender, unless the Swingline Lender shall not be required to fund any Swingline Loan, unless such Issuing Bank or the Swingline LenderIssuing Bank, as the case may be, shall have entered into arrangements with the Borrowers Borrower or such Affected Lender, satisfactory to such Issuing Bank the Swingline Lender or the Swingline LenderIssuing Bank, as the case may be, to defease any risk to it in respect of such Affected Lender hereunder. In the event that each of the Administrative Agent, the Borrowers, the applicable Issuing Banks and, in the case of the U.S. FacilityBorrower, the Swingline Lender and the Issuing Bank each agrees that a Defaulting Lender or an Affected Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and/or and LC Exposure of the Lenders under the applicable Facility shall be readjusted to reflect the inclusion of such Lender’s Revolving Commitment and on the such date of such readjustment such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage.
Appears in 3 contracts
Sources: Credit Agreement (Tupperware Brands Corp), Credit Agreement (Tupperware Brands Corp), Credit Agreement (Tupperware Brands Corp)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) fees shall cease to accrue on the unfunded portion of the Commitments Commitment of such Defaulting Lender pursuant to Section 2.12(a)2.11;
(b) such for purposes of computing the 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 not have the right to vote on any issue on which voting is required (other than be computed without giving effect to the extent expressly Commitment of that Defaulting Lender; provided in Section 9.02(b)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 Commitment and Revolving Exposure aggregate obligation of such a non-Defaulting Lender to acquire, refinance or fund participations in Letters of Credit shall not be included in determining whether exceed the Required Lenders or positive difference, if any, of (1) the Supermajority Revolving Lenders have taken or may take any action hereunderLetter of Credit Commitment of that non-Defaulting Lender minus (2) the aggregate Letter of Credit Obligations of that Lender;
(c) if any Swingline Exposure or LC Exposure exists at the time 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 of the applicable Class in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Exposures under such Class of Commitments plus such Defaulting Lender’s Swingline Exposure and LC Exposure under such Class of Commitments does not exceed the total of all non-Defaulting Lenders’ Commitments of such Class, (y) no non-Defaulting Lender’s Revolving Exposure under such Class of Commitments is increased above such Lender’s Commitment of such Class as a result thereof and (z) no Event of Default has then occurred and is continuing;
(ii) if the reallocation described in clause (ib) above cannot, or can only partially, be effected, then the applicable Borrower Borrowers shall within one Business Day following notice by the Administrative Agent (x) first, in the case of the U.S. Borrower, prepay such Swingline Exposure and (y) second, Cash Collateralize, Collateralize for the benefit of the applicable Issuing Bank, such Issuer only the Borrowers’ obligations corresponding to such Defaulting Lender’s LC Letter of Credit Exposure under the applicable Class of Commitments (after giving effect to any partial reallocation pursuant to clause (i) aboveb)) in accordance with the procedures set forth in Section 2.06(k) 2.05 for so long as such LC Letter of Credit Exposure is outstandingoutstanding and the relevant Defaulting Lender remains a Defaulting Lender;
(iiii) if a Borrower the Borrowers Cash Collateralizes Collateralize any portion of such Defaulting Lender’s LC Letter of Credit Exposure pursuant to clause (ii) abovec), such Borrower then the Borrowers shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.12(b2.11(b) with respect to such Defaulting Lender’s LC Letter of Credit Exposure during the period such Defaulting Lender’s LC Letter of Credit Exposure is Cash Collateralized;
; (ivii) if the LC Letter of Credit Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) aboveb), then the fees payable to the Lenders pursuant to Sections 2.12(aSection 2.11(a) and 2.12(b(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; and
or (viii) if all or any portion of such Defaulting Lender’s LC Letter of Credit Exposure is neither reallocated nor Cash Collateralized nor reallocated pursuant to clause (ib) or (ii) abovec), then, without prejudice to any rights or remedies of any Issuing Bank 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 2.12(b2.11(b) with respect to such Defaulting Lender’s LC Letter of Credit Exposure shall be payable to the applicable Issuing Bank Issuer until such LC Letter of Credit Exposure is reallocated Cash Collateralized and/or Cash Collateralizedreallocated;
(e) the Commitment and Loans of such Defaulting Lender shall not be included in determining whether all Lenders, the Majority Lenders, the Majority Revolving Lenders, the Supermajority Lenders, or the Supermajority Revolving Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.02); provided that (i) such Defaulting Lender’s Commitment may not be increased or extended without its consent and (ii) the principal amount of, or interest or fees payable on, Loans may not be reduced or excused or the scheduled date of payment may not be postponed as to such Defaulting Lender without such Defaulting Lender’s consent; and
(df) so long as such Lender is a Defaulting Lender, the applicable Issuing Bank under the applicable Facility no Issuer shall not be required to issue, amend increase, amend, renew, replace, refinance or increase extend any Letter of Credit, Credit unless it is satisfied that the related exposure it will be 100% covered by the Commitments of the non-Defaulting Lenders and/or Cash Collateral will be provided by the applicable Borrower(s) in accordance with Section 2.20(c), and participating interests in any such newly made Swingline Loan or newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to the Parent of any Lender shall occur following the Second Amendment Effective Date and for so long as such event shall continue or (ii) any Issuing Bank or the Swingline Lender has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, such Issuing Bank shall not be required to issue, amend or increase any Letter of Credit and the Swingline Lender shall not be required to fund any Swingline Loan, unless such Issuing Bank or the Swingline Lender, as the case may be, shall have entered into arrangements with the Borrowers or such Lender, satisfactory to such Issuing Bank or the Swingline Lender, as the case may be, to defease any risk in respect of such Lender hereunder. In the event that each of the Administrative Agent, the Borrowers, the applicable Issuing Banks and, in the case of the U.S. Facility, the Swingline Lender agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline no Fronting Exposure and/or LC Exposure of the Lenders under the applicable Facility shall be readjusted to reflect the inclusion of such Lender’s Commitment and on the date of such readjustment such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentageafter giving effect thereto.
Appears in 3 contracts
Sources: Credit Agreement (Unit Corp), Credit Agreement (Unit Corp), Credit Agreement (Unit Corp)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) fees shall cease to accrue on the unfunded portion of the Commitments Commitment of such Defaulting Lender pursuant to Section 2.12(a)2.14;
(b) such Defaulting Lender shall not have the right to vote on any issue on which voting is required (other than to the extent expressly provided in Section 9.02(b)) and the Commitment and Revolving the Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or the Supermajority Revolving Lenders have taken or may take any action hereunderhereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.02); provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender affected thereby;
(c) if any Swingline Exposure or LC Exposure exists at the time a such Lender becomes a Defaulting Lender and no Default or Event of Default has occurred and is continuing 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 of the applicable Class in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Exposures under such Class aggregate LC Exposure plus the aggregate amount of Commitments all non-Defaulting Lenders’ outstanding Loans plus such Defaulting Lender’s Swingline Exposure and LC Exposure under such Class of Commitments does not exceed the total of all non-Defaulting Lenders’ Commitments of such Class, (y) no non-Defaulting Lender’s Revolving Exposure under such Class of Commitments is increased above such Lender’s Commitment of such Class as a result thereof and (z) no Event of Default has then occurred and is continuingCommitments;
(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 (x) first, in the case of the U.S. Borrower, prepay such Swingline Exposure and (y) second, Cash Collateralize, for the benefit of the applicable Issuing Bank, such Borrowers’ obligations corresponding to such Defaulting Lender’s LC Exposure under the applicable Class of Commitments (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.06(k) for so long as such LC Exposure is outstanding;
(iii) if a Borrower Cash Collateralizes Company cash collateralizes any portion of such Defaulting Lender’s LC Exposure that has not been reallocated pursuant to clause (iii) above, such Borrower the Company shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.12(b) 2.14 with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is Cash Collateralizedcash collateralized;
(iviii) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(b) Section 2.14 shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; and
(viv) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor Cash Collateralized cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any the Issuing Bank Lender or any other Lender hereunder, all letter of credit fees payable under Section 2.12(b) 2.14 with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank Administrative Agent until and to the extent that such LC Exposure is reallocated and/or Cash Collateralizedcash collateralized; and
(d) so long as such Lender is a Defaulting Lender, the applicable no Issuing Bank under the applicable Facility Lender shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or Cash Collateral cash collateral will be provided by the applicable Borrower(s) Company in accordance with Section 2.20(c)clause (c) above, and participating interests in any such newly made Swingline Loan or newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.20(c)(iclause (c)(i) above (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to the Parent of any Lender shall occur following the Second Amendment Effective Date and for so long as such event shall continue or (ii) any Issuing Bank or the Swingline Lender has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, such Issuing Bank shall not be required to issue, amend or increase any Letter of Credit and the Swingline Lender shall not be required to fund any Swingline Loan, unless such Issuing Bank or the Swingline Lender, as the case may be, shall have entered into arrangements with the Borrowers or such Lender, satisfactory to such Issuing Bank or the Swingline Lender, as the case may be, to defease any risk in respect of such Lender hereunder. In the event that each of the Administrative Agent, the Borrowers, the applicable Company and each Issuing Banks and, in the case of the U.S. Facility, the Swingline Lender each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and/or aggregate LC Exposure of the Lenders under the applicable Facility shall be readjusted to reflect the inclusion of such Lender’s Commitment and on the date of such readjustment such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable PercentageCommitment.
Appears in 3 contracts
Sources: Credit Agreement (Xl Group PLC), Credit Agreement (Xl Group PLC), Credit Agreement (Xl Group PLC)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) fees shall cease to accrue on the unfunded portion of the Commitments Commitment of such Defaulting Lender pursuant to Section 2.12(a);
(b) such Defaulting Lender shall not have the right to vote on any issue on which voting is required (other than to the extent expressly provided in Section 9.02(b)) and the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or the Supermajority Revolving Lenders have taken or may take any action hereunderhereunder (including any consent to any amendment, waiver or other modification pursuant to Section 11.02); provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender affected thereby;
(c) if any Swingline Exposure or LC Exposure exists at the time a such 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 non-Defaulting Lenders of the applicable Class in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures under such Class of Commitments plus such Defaulting Lender’s Swingline Exposure and LC Exposure under such Class of Commitments does not exceed the total of all non-Defaulting Lenders’ Commitments and to the extent the sum of such Class, (y) no each non-Defaulting Lender’s Revolving Credit Exposure under and LC Exposure does not exceed such Class of Commitments is increased above such non-Defaulting Lender’s Commitment of such Class as a result thereof and (z) no Event of Default has then occurred and is continuingCommitment;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the applicable Borrower shall within one (1) Business Day following notice by the Administrative Agent (x) first, in the case of the U.S. Borrower, prepay such Swingline Exposure and (y) second, Cash Collateralize, cash collateralize for the benefit of the applicable Issuing Bank, such Borrowers’ LC Bank only the Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure under the applicable Class of Commitments (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 2.06(k) 8.01 for so long as such LC Exposure is outstanding;
(iii) if a the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, such the Borrower shall not be required to pay 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 any fronting fee), in each case with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is Cash Collateralizedcash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and Section 2.12(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; and;
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor Cash Collateralized cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing LC Bank or any other Lender hereunder, all Facility Fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing LC Bank until and to the extent that such LC Exposure is reallocated and/or Cash Collateralizedcash collateralized; and
(dvi) so long as such Lender is a Defaulting Lender, the applicable Issuing no LC Bank under the applicable Facility shall not be required to issue, amend or increase any Letter of Credit, unless it is reasonably satisfied that (i) the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or Cash Collateral cash collateral will be provided by the applicable Borrower(s) Borrower in accordance with Section 2.20(c), and (ii) participating interests in any such newly made Swingline Loan or newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to the a Parent of any Lender shall occur following the Second Amendment Effective Date date hereof and for so long as such event shall continue or (ii) any Issuing LC Bank or the Swingline Lender has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, such Issuing no LC Bank shall not be required to issue, amend or increase any Letter of Credit and the Swingline Lender shall not be required to fund any Swingline LoanCredit, unless such Issuing Bank or the Swingline Lender, as the case may beapplicable LC Bank, shall have entered into arrangements with the Borrowers Borrower or such Lender, satisfactory to such Issuing the applicable LC Bank or the Swingline Lender, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that each of the Administrative Agent, the Borrowers, Borrower and the applicable Issuing Banks and, in the case of the U.S. Facility, the Swingline Lender ▇▇ ▇▇▇▇▇ each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and/or LC Exposure of the Lenders under the applicable Facility shall be readjusted to reflect the inclusion of such Lender’s Commitment and on the such date of such readjustment such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage.
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 Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) fees shall cease to accrue on the unfunded portion of the Commitments Revolving Credit Commitment of such Defaulting Lender pursuant to Section 2.12(a2.11(a);
(b) such Defaulting Lender shall not have the right to vote on any issue on which voting is required (other than to the extent expressly provided in Section 9.02(b)) and the Revolving Credit Commitment and Revolving Exposure Loans of such Defaulting Lender shall not be included in determining whether the Required Lenders or the Supermajority Revolving Lenders have taken or may take any action hereunderhereunder (including any consent to any amendment, waiver or other modification pursuant to Section 11.1); provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender affected thereby;
(c) if any Swingline Exposure or LC Swing Line Exposure exists at the time a such Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Swing Line Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders of the applicable Class in accordance with their respective Applicable Percentages Revolving Credit Borrowing Shares, but only to the extent (x) the sum sufficient Available Revolving Credit Commitments of all non-Defaulting Lenders’ Revolving Exposures under Lenders exist to support such Class of Commitments plus such Defaulting Lender’s Swingline Exposure and LC Exposure under such Class of Commitments does not exceed the total of all non-Defaulting Lenders’ Commitments of such Class, (y) no non-Defaulting Lender’s Revolving Exposure under such Class of Commitments is increased above such Lender’s Commitment of such Class as a result thereof and (z) no Event of Default has then occurred and is continuing;reallocation; or
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the applicable relevant Swing Line Borrower shall within one Business Day following notice by the Administrative Agent (x) first, in the case of the U.S. Borrower, prepay such Swingline Exposure and (y) second, Cash Collateralize, for the benefit of the applicable Issuing Bank, such Borrowers’ obligations corresponding to such Defaulting Lender’s LC Exposure under the applicable Class of Commitments (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.06(k) for so long as such LC Exposure is outstanding;
(iii) if a Borrower Cash Collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, such Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is Cash Collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(b) shall be adjusted in accordance with such non-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 Lender hereunder, all letter of credit fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank until such LC Exposure is reallocated and/or Cash CollateralizedSwing Line Exposure; and
(d) so long as such Lender is a Defaulting Lender, the applicable Issuing Bank under the applicable Facility no Swing Line Lender shall not be required to issue, amend or increase fund any Letter of Credit, Swing Line Loan unless it is satisfied that the related exposure will be 100% covered by the Available Revolving Credit Commitments of the non-Defaulting Lenders and/or Cash Collateral will be provided by the applicable Borrower(s) in accordance with Section 2.20(c), and participating interests in any such newly made Swingline Swing Line Loan or newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.20(c)(iclause (c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event or Bail-In Action with respect to the a Lender Parent of any Lender shall occur following the Second Amendment Effective Date date hereof and for so long as such event shall continue or (ii) any Issuing Bank or the Swingline Lender has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend creditcontinue, such Issuing Bank shall not be required to issue, amend or increase any Letter of Credit and the Swingline each Swing Line Lender shall not be required to fund any Swingline Loan, Swing Line Loan unless such Issuing Bank or the Swingline Lender, as the case may be, Swing Line Lender shall be satisfied that appropriate arrangements have been entered into arrangements with the Borrowers or such Lender, satisfactory to such Issuing Bank or the Swingline Lender, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that each of the Administrative Agent, IBM and the Borrowers, the applicable Issuing Banks and, in the case of the U.S. Facility, the Swingline Lender agrees Swing Line Lenders agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and/or LC Swing Line Exposure of the Lenders under the applicable Facility shall be readjusted to reflect the inclusion of such Lender’s Commitment and on the date of such readjustment such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable PercentageRevolving Credit Commitment.
Appears in 3 contracts
Sources: Five Year Credit Agreement (International Business Machines Corp), Five Year Credit Agreement (International Business Machines Corp), 5 Year Credit Agreement (International Business Machines Corp)
Defaulting Lenders. Notwithstanding any provision of this Credit Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) fees Fees shall cease to accrue on the unfunded portion of the Commitments of for such Defaulting Lender pursuant to Section 2.12(a);2.12.
(b) such Defaulting Lender shall not have the right to vote on any issue on which voting is required (other than to the extent expressly provided in Section 9.02(b)) and the Commitment The Commitments, Loans and Revolving Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or the Supermajority Revolving Lenders have taken or may take any action hereunder;hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 11.12); provided that this Section 2.16(b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification effecting (i) an increase or extension of such Defaulting Lender’s Commitment or (ii) the reduction or excuse of principal amount of, or interest or fees payable on, such Defaulting Lender’s Loans or the postponement of the scheduled date of payment of such principal amount, interest or fees to such Defaulting Lender.
(c) if If any Swingline Exposure or LC Exposure exists Letters of Credit exist at the time a Lender such ▇▇▇▇▇▇ becomes a Defaulting Lender then:
(i) all or any part of the Swingline Such Defaulting Lender’s L/C Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders of the applicable Class in accordance with their respective Applicable Percentages (but excluding the Commitments of all the Defaulting Lenders from both the numerator and the denominator) but only to the extent (x) the sum of all the Revolving Exposure owed to all non-Defaulting Lenders’ Revolving Exposures under such Class of Commitments plus such Defaulting Lender’s Swingline Exposure and LC Exposure under such Class of Commitments Lenders does not exceed the total of all non-Defaulting Lenders’ Commitments of such ClassUnused Commitments, (y) no the Revolving Exposure owed to any non-Defaulting Lender does not exceed such non-Defaulting Lender’s Revolving Exposure under Commitment, (z) the representations and warranties of each Credit Party set forth in the Fundamental Documents to which it is a party are true and correct at such Class of Commitments is increased above time, except to the extent that any such Lender’s Commitment representation and warranty relates to an earlier date (in which case such representation and warranty shall be true and correct as of such Class as a result thereof earlier date), and (z) no Event of Default has then shall have occurred and is continuingbe continuing at such time;
(ii) if If the reallocation described in clause (i) above cannot, or can only partially, be effected, the applicable Borrower shall shall, within one two (2) Business Day Days following notice by the Administrative Agent (x) firstAgent, in the case of the U.S. Borrower, prepay such Swingline Exposure and (y) second, Cash Collateralize, cash collateralize for the benefit of the applicable relevant Issuing Bank, such Borrowers’ obligations corresponding to Banks such Defaulting Lender’s LC L/C Exposure under the applicable Class of Commitments (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.06(k) for so long as such LC Exposure is any Letters of Credit are outstanding;
(iii) if a If the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s LC L/C Exposure pursuant to clause (ii) above, such the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such Defaulting Lender’s LC L/C Exposure during the period such Defaulting Lender’s LC L/C Exposure is Cash Collateralizedcash collateralized by the Borrower;
(iv) if the LC Exposure If L/C Exposures of the non-Defaulting Lenders is are reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections Section 2.12(a) and Section 2.12(b) shall be adjusted in accordance with to reflect such non-Defaulting Lenders’ Applicable PercentagesL/C Exposure as reallocated; and
(v) if all or If any portion of such Defaulting Lender’s LC L/C Exposure is neither cash collateralized nor reallocated nor Cash Collateralized pursuant to clause clauses (i) or (ii) above, then, without prejudice to any rights or remedies of any the Issuing Bank Banks or any Lender hereunder, all letter of credit fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC L/C Exposure shall be payable to the each applicable Issuing Bank until such LC L/C Exposure is reallocated cash collateralized and/or Cash Collateralized; andreallocated.
(d) so So long as such any Lender is a Defaulting Lender, the applicable Issuing Bank under the applicable Facility Banks shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure L/C Exposure will be 100% covered by the Unused Commitments of the non-Defaulting Lenders and/or Cash Collateral cash collateral will be provided by the applicable Borrower(s) Borrower in accordance with Section 2.20(c2.16(c)(ii), and the participating interests in any such newly made Swingline Loan or newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i2.16(c)(i) (and such Defaulting Lender shall not participate therein). If (i) The rights and remedies against a Bankruptcy Event Defaulting Lender under this Credit Agreement are in addition to other rights and remedies that Borrower may have against such Defaulting Lender with respect to any funding default and that the Parent of Administrative Agent or any Lender shall occur following the Second Amendment Effective Date and for so long as may have against such event shall continue or (ii) Defaulting Lender with respect to any Issuing Bank or the Swingline Lender has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, such Issuing Bank shall not be required to issue, amend or increase any Letter of Credit and the Swingline Lender shall not be required to fund any Swingline Loan, unless such Issuing Bank or the Swingline Lender, as the case may be, shall have entered into arrangements with the Borrowers or such Lender, satisfactory to such Issuing Bank or the Swingline Lender, as the case may be, to defease any risk in respect of such Lender hereunderfunding default. In the event that each of the Administrative Agent, the Borrowers, the Borrower and each applicable Issuing Banks and, in the case of the U.S. Facility, the Swingline Lender Bank agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Revolving Exposure and/or LC Exposure of the Lenders under the applicable Facility shall be readjusted to reflect the inclusion of such Lender▇▇▇▇▇▇’s unused Commitment and on the such date of such readjustment such Lender shall purchase at par such of the Loans of the other Lenders (or take such other than Swingline Loans) actions as the Administrative Agent shall may determine may to be necessary to cause such outstanding Loans and funded and unfunded participations in order for Letters of Credit to be held on a pro rata basis by the Lenders (including such Lender to hold such Loans Lender) in accordance with its Applicable Percentagetheir applicable percentages, whereupon such Lender will cease to be a Defaulting Lender and will be a non-Defaulting Lender and any applicable cash collateral shall be promptly returned to the Borrower and any L/C Exposure of such Lender reallocated pursuant to the requirements above shall be reallocated back to such 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 Lender was a Defaulting Lender; provided that, subject to Section 11.22 and except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to 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.
Appears in 2 contracts
Sources: Credit and Guarantee Agreement (Lionsgate Studios Corp.), Credit and Guarantee Agreement (Lionsgate Studios Holding Corp.)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) fees 2.11.1.1 Facility Fees shall cease to accrue on the unfunded portion of the Commitments Commitment of such Defaulting Lender pursuant to Section 2.12(a2.4.1 (except to the extent allocable to (i) the outstanding principal amount of the Revolving Loans funded by it and (ii) its outstanding Swingline Exposure and/or LC Exposure for which such Defaulting Lender has provided Cash Collateral to the relevant Swingline Lender or LC Issuing Bank hereunder);
(b) such Defaulting Lender shall not have the right to vote on any issue on which voting is required (other than to the extent expressly provided in Section 9.02(b)) and 2.11.1.2 the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or the Supermajority Revolving Lenders have taken or may take any action hereunderhereunder (including any consent to any amendment, waiver or other modification pursuant to Section 7.9), except that (i) the Commitment(s) of any Defaulting Lender may not be increased or extended, or the maturity of any of its Loans may not be extended, the rate of interest on any of its Loans may not be reduced and the principal amount of any of its Loans may not be forgiven, in each case without the consent of such Defaulting Lender and (ii) any amendment, waiver or consent requiring the consent of all the Lenders or each affected Lender that by its terms affects any Defaulting Lender more adversely than the other affected Lenders shall require the consent of such Defaulting Lender;
(c) 2.11.1.3 if any Swingline Exposure or LC Exposure exists at the time a such Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders of the applicable Class in accordance with their respective Applicable Percentages Proportionate Shares but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures under such Class of Commitments plus such Defaulting Lender’s Swingline Exposure and LC Exposure under such Class of Commitments does not exceed the total of all non-Defaulting Lenders’ Commitments of Commitments; provided that each such Classreallocation shall be given effect only if, (y) no non-at the date the applicable Lender becomes a Defaulting Lender’s Revolving Exposure under such Class of Commitments is increased above such Lender’s Commitment of such Class as a result thereof and (z) , no Inchoate Default or Event of Default has then occurred and is continuingexists;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the applicable Borrower shall within one Business Banking Day following notice by the Administrative Agent (x) first, in the case of the U.S. Borrower, prepay such Swingline Exposure and (y) second, Cash Collateralize, Collateralize for the benefit of the applicable LC Issuing Bank, such Borrowers’ Banks only Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure under the applicable Class of Commitments (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.06(k) 2.2.10 for so long as such LC Exposure is outstanding;
(iii) if a Borrower Cash Collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, such Borrower shall not be required to pay any Letter of Credit fees to such Defaulting Lender pursuant to Section 2.12(b) 2.4.2 with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is Cash Collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the Letter of Credit fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(b) Section 2.4.2 shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable PercentagesProportionate Shares; 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 LC Issuing Bank or any Lender hereunder, all letter Facility Fees that otherwise would have been payable to such Defaulting Lender pursuant to Section 2.4.1 (solely with respect to the portion of credit such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and Letter of Credit fees payable under Section 2.12(b) 2.4.2 with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable relevant LC Issuing Bank until and to the extent that such LC Exposure is reallocated and/or Cash Collateralized; and
(dvi) so long as such Lender is a Defaulting Lender, the applicable no Swingline Lender shall be required to fund any Swingline Loan and no LC Issuing Bank under the applicable Facility shall not be required to issue, amend or increase any Letter of Credit, unless it such Swingline Lender or LC Issuing Bank, as the case may be, is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or Cash Collateral will be provided by the applicable Borrower(s) Borrower in accordance with Section 2.20(c)2.2.10, and participating interests in any such newly made Swingline Loan or any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i) 2.2.7 (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event bankruptcy event (as such term is defined in clause (d) of the definition of “Defaulting Lender”) with respect to the Parent of any Person as to which any Lender is, directly or indirectly, a Subsidiary shall occur following the Second Amendment Effective Date date hereof and for so long as such event shall continue or (ii) any Swingline Lender or any LC Issuing Bank or the Swingline Lender has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, such no Swingline Lender shall be required to fund any Swingline Loan and no LC Issuing Bank shall not be required to issue, amend or increase any Letter of Credit and Credit, unless Borrower shall have Cash Collateralized such Lender’s Swingline Exposure or LC Exposure, as the case may be, pursuant to Section 2.11.3 or otherwise such Swingline Lender shall not be required to fund any Swingline Loan, unless or such LC Issuing Bank or the Swingline LenderBank, as the case may be, shall have entered into arrangements with the Borrowers Borrower or such Lender, satisfactory to such Swingline Lender or such LC Issuing Bank or the Swingline LenderBank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that each of the Administrative Agent, the Borrowers, the applicable Issuing Banks and, in the case of the U.S. FacilityBorrower, the Swingline Lender Lenders and the LC Issuing Banks each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and/or and LC Exposure of the Lenders under the applicable Facility shall be readjusted to reflect the inclusion of such Lender’s Commitment and on the such date of such readjustment such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable PercentageProportionate Share.
Appears in 2 contracts
Sources: Credit Agreement (Tampa Electric Co), Credit Agreement (Teco Energy Inc)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) fees shall cease to accrue on the unfunded portion of the Commitments of such Defaulting Lender pursuant to Section 2.12(a);
(b) such Defaulting Lender shall not have the right to vote on any issue on which voting is required (other than to the extent expressly provided in Section 9.02(b)) and the Commitment and Revolving Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or the Supermajority Revolving Lenders have taken or may take any action hereunder;
(c) if any Swingline Exposure or LC Exposure exists at the time 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 nonNon-Defaulting Lenders of the applicable Class in accordance with their respective Applicable Percentages (calculated (x) without regard to such Defaulting Lender’s Commitment and (y) in accordance with the Commitments in respect of the applicable type of Letter of Credit) but only to the extent that (i) the conditions set forth in Section 3.02 are satisfied at the time of 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 Lender’s Applicable Percentage (calculated (x) the sum of all non-Defaulting Lenders’ Revolving Exposures under such Class of Commitments plus without regard to such Defaulting Lender’s Swingline Exposure Commitment and LC Exposure under such Class of Commitments does not exceed the total of all non-Defaulting Lenders’ Commitments of such Class, (y) no nonin accordance with the Commitments in respect of the applicable type of Letter of Credit) of the Utilization to exceed such Non-Defaulting Lender’s Revolving Exposure under such Class Commitment in respect of Commitments is increased above such 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’s Commitment , including any claim of such Class a Non-Defaulting Lender as a result thereof and (z) no Event of Default has then occurred and is continuingsuch 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 applicable Borrower Company shall within one two (2) Business Day Days following notice by the Administrative Agent cash collateralize or (xto the extent permitted by Section 2.12(c)) first, in the case of the U.S. Borrower, prepay such Swingline Exposure and (y) second, Cash Collateralize, provide Permitted Cover for the benefit of the applicable Issuing Bank, such Borrowers’ obligations corresponding to such Defaulting Lender’s LC Exposure under the applicable Class of Commitments (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.06(k) 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 a Borrower Cash Collateralizes 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 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), such Borrower the Company shall not be required to pay any 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 Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is Cash Collateralized;
cash collateralized or covered by Permitted Cover and (iviii) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor Cash Collateralized cash collateralized pursuant to clause (i) or (ii) abovethis Section 2.22, then, without prejudice to any rights or remedies of any Issuing Bank or any Lender hereunder, all letter of credit fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure the Company shall be payable pay to the applicable Issuing Bank until Lenders the amount of any such LC Exposure is reallocated and/or Cash CollateralizedLetter of Credit Fees otherwise payable to such Defaulting Lender pursuant to Section 2.19(b); and
(de) so long as such Lender is a Defaulting Lender, the applicable no Issuing Bank under the applicable Facility shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or Cash Collateral will be provided by the applicable Borrower(s) in accordance with Section 2.20(c), and participating interests in any such newly made Swingline Loan or newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to the Parent of any Lender shall occur following the Second Amendment Effective Date and for so long as such event shall continue or (ii) any Issuing Bank or the Swingline Lender has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, such Issuing Bank shall not be required to issue, amend or increase any Letter of Credit unless it is satisfied that cash collateral or (to the extent permitted by Section 2.12(c)) Permitted Cover will be provided by the Company in accordance with the foregoing clause (b). If the Company, the Administrative Agent and the Swingline each Issuing Lender shall not be required to fund any Swingline Loan, unless such Issuing Bank or the Swingline 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 (which may include arrangements with respect to any cash collateral), that Lender will, to the extent applicable, purchase at par that portion of outstanding Revolving Advances of the other Lenders or take such other actions as the case Administrative Agent may be, shall have entered into arrangements determine to be necessary to cause the Revolving Advances and funded and unfunded participations in Letters of Credit to be held pro rata by the Lenders in accordance with the Borrowers or such LenderCommitments then in effect (without giving effect to Section 2.22(a)), satisfactory to such Issuing Bank or the Swingline Lender, as the case may be, to defease any risk in respect of whereupon such Lender hereunder. In the event that each of the Administrative Agent, the Borrowers, the applicable Issuing Banks and, in the case of the U.S. Facility, the Swingline Lender agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender will cease to be a Defaulting Lender, then the Swingline Exposure and/or LC Exposure ; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Lenders under Company while that Lender was a Defaulting Lender; and provided, further, that except to the applicable Facility shall be readjusted extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to reflect the inclusion Lender will constitute a waiver or release of such any claim of any party hereunder arising from that Lender’s Commitment and on the date of such readjustment such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentagehaving been a Defaulting 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 any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) fees shall cease to accrue on the unfunded portion of the Commitments of such Defaulting Lender pursuant shall be entitled to Section 2.12(a)receive a Facility Fee for any period during which such Lender is a Defaulting Lender only to extent allocable to the sum of (i) the outstanding principal amount of the Revolving Loans funded by such Lender, and (ii) its L/C Exposure for which it has provided cash collateral;
(b) such Defaulting Lender shall not have the right to vote on any issue on which voting is required (other than to the extent expressly provided in Section 9.02(b)) and the Commitment and Revolving Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or the Supermajority Revolving Lenders have taken or may take any action hereunderhereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.08); provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender affected thereby;
(c) if any Swingline Exposure or LC L/C Exposure exists at the time a such 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 non-Defaulting Lenders of the applicable Class in accordance with their respective Applicable Revolving Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Exposures under such Class of Commitments Credit Exposure plus such Defaulting Lender’s Swingline L/C Exposure and LC Exposure under such Class of Commitments does not exceed the total of all non-Defaulting Lenders’ Commitments of such Class, and (y) no non-Defaulting any Lender’s Revolving Credit Exposure under after giving effect to such Class of Commitments is increased above reallocation does not exceed such Lender’s Commitment of such Class as a result thereof and (z) no Event of Default has then occurred and is continuingCommitment;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the applicable Borrower shall within one (1) Business Day following notice by the Administrative Agent (x) firstAgent, in the case of the U.S. Borrower, prepay such Swingline Exposure and (y) second, Cash Collateralize, cash collateralize for the benefit of the applicable Issuing Bank, such Borrowers’ Lenders only the Borrower’s obligations corresponding to such Defaulting Lender’s LC L/C Exposure under the applicable Class of Commitments (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.06(k) 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 a Borrower Cash Collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, such Borrower shall not be required to pay any fees to such Defaulting Lender shall be entitled to receive fees pursuant to Section 2.12(b3.03(a) with respect to 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 which cash collateral has been provided by the Defaulting Lender’s LC Exposure is Cash Collateralized;
(iv) if the LC L/C Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(bSection 3.03(a) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Revolving Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC L/C Exposure is neither reallocated nor Cash Collateralized cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any the Issuing Bank Lenders or any other Lender hereunder, all letter of credit 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 Bank Lender until and to the extent that such LC L/C Exposure is reallocated and/or Cash Collateralized; andcash collateralized;
(d) so long as such Lender is a Defaulting Lender, the applicable no Issuing Bank under the applicable Facility Lender shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding L/C Exposure will be 100% covered by the Commitments of reallocated to the non-Defaulting Lenders and/or Cash Collateral cash collateral will be provided by the applicable Borrower(s) in accordance with Section 2.20(c)Borrower or such Defaulting Lender, and participating interests in any such newly made Swingline Loan or newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i10.19(c)(i) (and such Defaulting Lender shall not participate therein). If .
(e) if (i) a Bankruptcy Event with respect to the a Lender Parent of any Lender shall occur following the Second Amendment Effective Date date hereof and for so long as such event shall continue or (ii) any Issuing Bank or the Swingline Lender has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, such no Issuing Bank Lender shall not be required to issue, amend or increase any Letter of Credit and the Swingline Lender shall not be required to fund any Swingline LoanCredit, unless such Issuing Bank or the Swingline Lender, as the case may be, Lender shall have entered into arrangements with the Borrowers Borrower or such Lender, satisfactory to such Issuing Bank or the Swingline Lender, 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 each of the Administrative Agent, the Borrowers, the applicable Borrower and each Issuing Banks and, Lender each agrees in the case of the U.S. Facility, the Swingline Lender agrees writing that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and/or LC L/C Exposure of the Lenders under the applicable Facility shall be readjusted to reflect the inclusion of such Lender’s Commitment and on the such date of such readjustment such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Revolving Percentage; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while 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 such 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 Lender becomes a Defaulting LenderLender hereunder (as determined by the Administrative Agent), then the following provisions shall apply for so long as such Defaulting Lender is a Defaulting Lender:
(a) the Administrative Agent shall promptly notify the Borrower and each Lender that such Lender is a Defaulting Lender for purposes of this Agreement;
(b) fees under Section 2.09(a) shall cease to accrue on the unfunded portion of the Commitments Commitment of such Defaulting Lender pursuant to Section 2.12(a)Lender;
(bc) such Defaulting Lender shall not have the right to vote on any issue on which voting is required (other than to the extent expressly provided in Section 9.02(b)) and the Commitment Commitments and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining disregarded for all purposes of any determination of whether the Required Lenders or the Supermajority Revolving Lenders have taken or may take any action hereunderhereunder (including any consent to any amendment or waiver pursuant to Section 9.02); provided, that this clause (c) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender affected thereby;
(cd) for purposes of determining the amount of the total Commitments, 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);
(e) if any Committed Swingline Exposure or LC Uncommitted Swingline Exposure exists at the time a such Lender becomes a Defaulting Lender then:
(i) all or any part of the Committed Swingline Exposure and LC Uncommitted Swingline Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders of the applicable Class in accordance with their respective Applicable Percentages Commitments but only to the extent (x) that the sum of all non-Defaulting Lenders’ Revolving Credit Exposures under such Class of Commitments plus such Defaulting Lender’s Committed Swingline Exposure and LC Uncommitted Swingline Exposure under such Class of Commitments does not exceed the total of all non-Defaulting Lenders’ Commitments of such Class, (y) no non-Defaulting Lender’s Revolving Exposure under such Class of Commitments is increased above such Lender’s Commitment of such Class as a result thereof and (z) no Event of Default has then occurred and is continuingCommitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the applicable Borrower shall within one (1) Business Day following notice by the Administrative Agent (x) first, in the case of the U.S. Borrower, prepay such Committed Swingline Exposure and (y) second, Cash Collateralize, for the benefit of the applicable Issuing Bank, such Borrowers’ obligations corresponding to such Defaulting Lender’s LC Exposure under the applicable Class of Commitments (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.06(k) for so long as such LC Exposure is outstandingUncommitted Swingline Exposure;
(iii) if a Borrower Cash Collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, such Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is Cash Collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(b) shall be adjusted in accordance with such non-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 Lender hereunder, all letter of credit fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank until such LC Exposure is reallocated and/or Cash Collateralized; and
(df) so long as such Lender is a Defaulting Lender, the applicable Issuing Bank under the applicable Facility no Committed Swingline Lender shall not be required to issue, amend or increase fund any Letter of CreditCommitted Swingline Loan, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or Cash Collateral will be provided by the applicable Borrower(s) in accordance with Section 2.20(c), and participating interests in Committed Swingline Exposure related to any such newly made Committed Swingline Loan or newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i2.20(e)(i) (and such Defaulting Lender shall not participate therein). If ;
(g) in the Administrative Agent’s sole discretion:
(i) a Bankruptcy Event with respect 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 Parent prepayment of any Lender shall occur following the Second Amendment Effective Date and for so long as such event shall continue or Loans of any Defaulting Lender; and
(ii) any Issuing Bank amount payable to such Defaulting Lender pursuant to this 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 2.15) may, in lieu of being distributed to such Defaulting Lender, be retained by the 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 (i) first, pro rata, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent, (ii) second, pro rata, to the payment of any amounts owing to the Borrowers or the Swingline Lender has Lenders as a good faith belief that result of any judgment of a court of competent jurisdiction obtained by any Borrower or any Lender has defaulted in fulfilling against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under one or more other agreements in which such Lender commits to extend creditthis Agreement and (iii) third, such Issuing Bank shall not be required to issue, amend or increase any Letter of Credit and the Swingline Lender shall not be required to fund any Swingline Loan, unless such Issuing Bank or the Swingline Lender, as the case may be, shall have entered into arrangements with the Borrowers or such Lender, satisfactory to such Issuing Bank Defaulting Lender or the Swingline Lender, as the case may be, to defease any risk in respect otherwise directed by a court of such Lender hereundercompetent jurisdiction. In the event that each of the Administrative Agent, the BorrowersBorrower, the applicable Issuing Banks andCommitted Swingline Lenders and the Uncommitted Swingline Lenders, in the case of the U.S. Facilityif any, the Swingline Lender agrees each agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Committed Swingline Exposure and/or LC and the Uncommitted Swingline Exposure of the Lenders under the applicable Facility shall be readjusted to reflect the inclusion of such Lender’s Commitment and on the such date of such readjustment such Lender shall purchase at par such of the Loans of the other Lenders (other than Committed Swingline Loans and Uncommitted Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage.
Appears in 2 contracts
Sources: 364 Day Credit Agreement (E TRADE FINANCIAL Corp), 364 Day Credit Agreement (E TRADE FINANCIAL Corp)
Defaulting Lenders. Notwithstanding (a) If a Lender becomes, and during the period it remains, a Defaulting Lender, the following provisions shall apply with respect to any provision outstanding LC Exposure of this Agreement such Defaulting Lender:
(i) the LC Exposure of such Defaulting Lender will, subject to the contrarylimitation in the proviso below, if any 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 Commitments; provided that (A) each such reallocation shall be given effect only if, at the time the applicable Lender becomes a Defaulting Lender, then no Default or Event of Default exists, (B) the sum of each Non-Defaulting Lender’s total Revolving Credit Exposure and total LC Exposure may not in any event exceed the Commitment of such Non-Defaulting Lender as in effect at the time of such reallocation and (C) neither such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Issuing Bank, or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender;
(ii) to the extent that any portion (the “unreallocated portion”) of the Defaulting Lender’s LC Exposure cannot be so reallocated, whether by reason of the proviso in clause (i) above or otherwise, the Borrower will, not later than three (3) Business Days after demand by the Administrative Agent (at the direction of the Issuing Bank), (A) Cash Collateralize the obligations of the Borrower to the Issuing Bank in respect of such LC Exposure as set forth in Section 2.21(b), or (B) make other arrangements satisfactory to the Administrative Agent and to the Issuing Bank, in their sole discretion to protect them against the risk of non-payment by such Defaulting Lender; and
(iii) any amount paid by the Borrower or otherwise received by the Administrative Agent for the account of a Defaulting Lender under this Agreement (whether on account of principal, interest, fees, indemnity payments or other amounts) will not be paid or distributed to such Defaulting Lender, but will instead be retained by the Administrative Agent in a segregated non-interest bearing account until applied by the Administrative Agent (subject to Section 2.21(c)), to the fullest extent permitted by law, to the making of payments from time to time in the following provisions shall apply for so long as order of priority: first to the payment of any amounts owing by such Defaulting Lender is a to the Administrative Agent under this Agreement, second to the payment of any amounts owing by such Defaulting Lender:
(a) Lender to the Issuing Bank under this Agreement, third to the payment of post-default interest and then current interest due and payable to the Lenders hereunder other than Defaulting Lenders, ratably among them in accordance with the amounts of such interest then due and payable to them, fourth to the payment of fees shall cease then due and payable to accrue on the unfunded portion Non-Defaulting Lenders hereunder, ratably among them in accordance with the amounts of such fees then due and payable to them, fifth to pay principal and unreimbursed LC Disbursements then due and payable to the Non-Defaulting Lenders hereunder ratably in accordance with the amounts thereof then due and payable to them, sixth to the ratable payment of other amounts then due and payable to the Non-Defaulting Lenders, and seventh 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 pursuant to Section 2.12(a);
(b) or as a court of competent jurisdiction may otherwise direct. The application of such Defaulting Lender payments in accordance herewith shall not have constitute an Event of Default or a Default and no payment of principal of or interest on the right to vote on any issue on which voting is required (other than to the extent expressly provided in Section 9.02(b)) and the Commitment and Revolving Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or the Supermajority Revolving Lenders have taken or may take any action hereunder;
(c) if any Swingline Exposure or LC Exposure exists at the time a Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure Loans of such Defaulting Lender shall be considered to be overdue, if, had such payments been applied without regard hereto, no such Event of Default or Default would have occurred and no such payment of principal of or interest on the Loans of such Defaulting Lender would have been overdue. Upon making any payment to the Administrative Agent or any Issuing Bank for the account of a Defaulting Lender, the Borrower’s obligation to pay such amount to such Defaulting Lender shall be fully discharged and such Defaulting Lender shall have no recourse to the Borrower for the payment of such amount.
(b) If any Lender becomes, and during the period it remains, a Defaulting Lender, if any Letter of Credit is at the time outstanding, the Issuing Bank may (except to the extent the Commitments have been fully reallocated among pursuant to Section 2.21(a)), by notice to the Borrower and such Defaulting Lender through the Administrative Agent, require the Borrower to Cash Collateralize the obligations of the Borrower to the Issuing Bank in respect of such Letter of Credit in amount equal to 102% of the aggregate amount of the unreallocated obligations (contingent or otherwise) of such Defaulting Lender to be applied pro rata in respect thereof, or to make other arrangements satisfactory to the Administrative Agent, and to the Issuing Bank, in their sole discretion to protect them against the risk of non-payment by such Defaulting Lenders Lender.
(c) If the Borrower, the Administrative Agent, and the Issuing Bank agree in writing in their discretion that a Lender is no longer a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the applicable Class effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any amounts then held in the segregated account referred to in Section 2.21(a)), such Lender will, to the extent applicable, purchase at par such portion of outstanding Loans of the other Lenders and/or make such other adjustments as the Administrative Agent may determine to be necessary to cause the Revolving Credit Exposure and LC Exposure of the Lenders to be held on a pro rata basis in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Exposures under such Class of Commitments plus such Defaulting Lender’s Swingline Exposure and LC Exposure under such Class of Commitments does not exceed the total of all non-Defaulting Lenders’ Commitments of such ClassCommitments, (y) no non-Defaulting Lender’s Revolving Exposure under such Class of Commitments is increased above such Lender’s Commitment of such Class as a result thereof and (z) no Event of Default has then occurred and is continuing;
(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 (x) first, in the case of the U.S. Borrower, prepay such Swingline Exposure and (y) second, Cash Collateralize, for the benefit of the applicable Issuing Bank, such Borrowers’ obligations corresponding to such Defaulting Lender’s LC Exposure under the applicable Class of Commitments (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.06(k) for so long as such LC Exposure is outstanding;
(iii) if a Borrower Cash Collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, such Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is Cash Collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(b) shall be adjusted in accordance with such non-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 Lender hereunder, all letter of credit fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank until such LC Exposure is reallocated and/or Cash Collateralized; and
(d) so long as whereupon such Lender is a Defaulting Lender, the applicable Issuing Bank under the applicable Facility shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or Cash Collateral will be provided by the applicable Borrower(s) in accordance with Section 2.20(c), and participating interests in any such newly made Swingline Loan or newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to the Parent of any Lender shall occur following the Second Amendment Effective Date and for so long as such event shall continue or (ii) any Issuing Bank or the Swingline Lender has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, such Issuing Bank shall not be required to issue, amend or increase any Letter of Credit and the Swingline Lender shall not be required to fund any Swingline Loan, unless such Issuing Bank or the Swingline Lender, as the case may be, shall have entered into arrangements with the Borrowers or such Lender, satisfactory to such Issuing Bank or the Swingline Lender, as the case may be, to defease any risk in respect of such Lender hereunder. In the event that each of the Administrative Agent, the Borrowers, the applicable Issuing Banks and, in the case of the U.S. Facility, the Swingline Lender agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender cease to be a Defaulting Lender, then the Swingline Exposure and/or LC Lender and will be a Non-Defaulting Lender (and such Exposure of the Lenders under the applicable Facility shall each Lender will automatically be readjusted adjusted on a prospective basis to reflect the inclusion foregoing); provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while such Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Non-Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from such Lender’s Commitment and on the date of such readjustment such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentagehaving been a Defaulting Lender.
Appears in 2 contracts
Sources: Credit Agreement (Williams Randa Duncan), Credit Agreement (Williams Randa Duncan)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if If any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender, to the extent permitted by applicable law:
(a) fees shall cease to accrue on the unfunded unused portion of the Commitments Commitment of such Defaulting Lender pursuant to Section 2.12(a2.10(a);
(b) such Defaulting Lender shall not have the right to vote on any issue on which voting is required (other than to the extent expressly provided in Section 9.02(b)) and the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or the Supermajority Revolving Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification permitted to be effected by the Required Lenders pursuant to Section 8.02), and, notwithstanding Section 8.02, any such Defaulting Lender shall not have the right to 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 rights of such Defaulting Lender or increase or extend such Defaulting Lender’s Commitment hereunder;
(c) if any Swingline Exposure or LC Exposure exists exist at the time a such Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be automatically reallocated among the non-Defaulting Lenders of the applicable Class in accordance with their respective Applicable Percentages but only to the extent (x) the sum total of all non-Defaulting Lenders’ Revolving Credit Exposures under such Class of Commitments plus such Defaulting Lender’s Swingline Exposure and LC Exposure under such Class of Commitments does not exceed the total of all non-Defaulting Lenders’ Commitments of such Class, (y) no non-Defaulting Lender’s Revolving Exposure under such Class of Commitments is increased above such Lender’s Commitment of such Class as a result thereof and (z) no Event of Default has then occurred and is continuingCommitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the applicable Borrower shall within one ten Business Day Days following notice by the Administrative Agent (x) first, in procure the case reduction or termination of the U.S. Borrower, prepay such Swingline Exposure and (y) second, Cash Collateralize, for the benefit of the applicable Issuing Bank, such Borrowers’ obligations corresponding to such Defaulting Lender’s LC Exposure under the applicable Class of Commitments (after giving effect to any partial reallocation pursuant to clause (i) above) and/or (y) Cash Collateralize for the benefit of the Issuing Banks only the Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above and any reduction of the Defaulting Lender’s LC Exposure pursuant to subclause (x) above) in accordance with the procedures set forth in Section 2.06(k2.04(j) for so long as such LC Exposure is outstanding;
(iii) if a the Borrower Cash Collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, such the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.12(b2.10(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is are Cash Collateralized;
(iv) if to the extent that the LC Exposure of the non-Defaulting Lenders is 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 2.10(b) shall to the same extent be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; and;
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated not reallocated, reduced, terminated nor Cash Collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any the Issuing Bank Banks or any other Lender hereunder, all letter of credit fees payable under Section 2.12(b2.10(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank Banks until and to the extent that such LC Exposure is reallocated reallocated, reduced, terminated and/or Cash Collateralized; and
(vi) Cash Collateral (or the appropriate portion thereof) provided with respect to any Defaulting Lender’s LC Exposure shall no longer be required to be held as Cash Collateral pursuant to this Section 2.18 and shall be released to the Person providing such Cash Collateral following (A) the elimination of the applicable LC Exposure of such Defaulting Lender, (B) the termination of the Defaulting Lender status of the applicable Lender, or (C) the determination by the Administrative Agent and each Issuing Bank that there exists excess Cash Collateral; provided that the Person providing Cash Collateral and each Issuing Bank may agree that Cash Collateral shall be held to support future anticipated LC Exposure or other obligations of a Defaulting Lender.
(d) so long as such Lender is a Defaulting Lender, the applicable no Issuing Bank under the applicable Facility shall not be required to issue, amend extend, renew or increase any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure after giving effect thereto will be 100% covered by the Commitments of the non-Defaulting Lenders and/or reduced, terminated and/or Cash Collateral will be provided by the applicable Borrower(s) Collateralized in accordance with Section 2.20(c2.19(c), and participating interests in any such newly made Swingline Loan or newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i2.18(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to the Parent of any Lender shall occur following the Second Amendment Effective Date and for so long as such event shall continue or (ii) any Issuing Bank or the Swingline Lender has a good faith belief that any Lender has defaulted in fulfilling its funding obligations under one or more other agreements in which such Lender commits to extend credit, such Issuing Bank shall not be required to issue, amend extend, renew or increase any Letter of Credit and the Swingline Lender shall not be required to fund any Swingline LoanCredit, unless such Issuing Bank or the Swingline Lender, as the case may be, shall have entered into arrangements with the Borrowers Borrower or such Lender, reasonably satisfactory to such Issuing Bank or the Swingline Lender, as the case may be, to defease any risk to such Issuing Bank in respect of such Lender hereunderhereunder relating to LC Exposure. In the event that each of the Administrative Agent, the Borrowers, the applicable Borrower and each Issuing Banks and, in the case of the U.S. Facility, the Swingline Lender agrees Bank agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and/or LC Exposure of the Lenders under the applicable Facility shall be readjusted to reflect the inclusion of such Lender’s Commitment and on the such date of such readjustment such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be is necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage; provided that there shall be no retroactive effect on fees reallocated pursuant to Section 2.18(c)(iv) and (v).
(e) Any payment of principal, interest, fees or other amounts received by the Administrative 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, 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 for the benefit of the Issuing Banks such Defaulting Lender’s LC Exposure (on a pro rata basis to all then outstanding Letters of Credit issued by all Issuing Banks); 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 such Defaulting Lender’s LC Exposure 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 Banks as a result of any judgment of a court of competent jurisdiction obtained by any Lender or Issuing Bank against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (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 3.02 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 Credit Exposure of each Lender is held in accordance with such Lender’s Commitment without giving effect to Section 2.18(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 2.18(e) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
Appears in 2 contracts
Sources: Credit Agreement (Applied Materials Inc /De), Credit Agreement (Applied Materials Inc /De)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) fees the Commitment Fee shall cease to accrue on the unfunded portion of the Commitments Commitment of such Lender so long as it is a Defaulting Lender (except to the extent it is payable to the Issuing Bank pursuant to Section 2.12(aclause (c)(v) below);
(b) such Defaulting Lender shall not have the right to vote on any issue on which voting is required (other than to the extent expressly provided in Section 9.02(b)) and the Commitment and Revolving Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or the Supermajority Revolving Lenders have taken or may take any action hereunder;
(c) if any Swingline Exposure or LC Exposure exists at the time a Lender becomes a Defaulting Lender then:
(i) all or any part of the such Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders of the applicable Class in accordance with their respective Applicable Pro Rata Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Exposures under such Class of Commitments plus such Defaulting Lender’s Swingline Exposure and LC Exposure under such Class of Commitments does not exceed the total of all non-Defaulting Lenders’ Commitments of such Class, (y) no non-Defaulting Lender’s Revolving Exposure under such Class of Commitments is increased above such Lender’s Commitment of such Class as a result thereof and (z) no Event of Default has then occurred and is continuingCommitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the applicable Borrower Borrowers shall within one (1) Business Day following notice by the Administrative Agent (x) first, in the case of the U.S. Borrower, prepay such Defaulting Lender’s Swingline Exposure and (y) second, Cash Collateralize, for the benefit provide Letter of the applicable Issuing Bank, such Borrowers’ obligations corresponding Credit Collateralization with respect to such Defaulting Lender’s LC Exposure under the applicable Class of Commitments (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.06(k) for so long as such LC Exposure is outstanding;
(iii) if a Borrower Cash Collateralizes any portion of such Defaulting Lender’s LC Exposure is cash collateralized pursuant to clause (ii) above, such Borrower the Borrowers shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.12(b) the LC Participation Fee with respect to such portion of such Defaulting Lender’s LC Exposure during the period so long as it is cash collateralized;
(iv) if any portion of such Defaulting Lender’s LC Exposure is Cash Collateralized;
(iv) if the LC Exposure of reallocated to the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable LC Participation Fee with respect to the Lenders pursuant to Sections 2.12(a) and 2.12(b) such portion shall be adjusted allocated among the non-Defaulting Lenders in accordance with such non-Defaulting Lenders’ Applicable their Pro Rata Percentages; andor
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither cash collateralized nor reallocated nor Cash Collateralized pursuant to clause (i) or (ii) abovethis Section 2.19(b), then, without prejudice to any rights or remedies of any the Issuing Bank or any Lender hereunder, all letter the Commitment Fee that otherwise would have been payable to such Defaulting Lender (with respect to the portion of credit fees such Defaulting Lender’s Revolving Commitment that was utilized by such LC Exposure) and the LC Participation Fee payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank until such LC Exposure is reallocated cash collateralized and/or Cash Collateralized; andreallocated;
(dc) so long as such any Lender is a Defaulting Lender, the applicable Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Bank under the applicable Facility shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Revolving Commitments of the non-Defaulting Lenders and/or Cash Collateral will be provided by the applicable Borrower(s) cash collateralized in accordance with Section 2.20(c2.19(b), and participating interests participations in any such newly made Swingline Loan or newly issued or increased Letter of Credit or newly made Swingline Loan shall be allocated among non-Defaulting Lenders in a manner consistent accordance with Section 2.20(c)(i) their respective Pro Rata Percentages (and such Defaulting Lender Lenders shall not participate therein). If ; and
(d) 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(d) but excluding Section 2.16(b)) may, in lieu of being distributed to such Defaulting Lender, be retained by the 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 (i) a Bankruptcy Event with respect first, to the Parent payment of any amounts owing by such Defaulting Lender shall occur following to the Second Amendment Effective Date and for so long as such event shall continue or Administrative Agent hereunder; (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to the Issuing Bank or the Swingline Lender hereunder; (iii) third, to the funding of any Loan or the funding or cash collateralization of any participation in any Swingline Loan or 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 the Administrative Agent; (iv) fourth, if so determined by the Administrative Agent and Borrower, held in such account as cash collateral for future funding obligations of the Defaulting Lender under this Agreement; (v) fifth, pro rata, to the payment of any amounts owing to the Borrowers or the Lenders as a good faith belief that result of any judgment of a court of competent jurisdiction obtained by the Borrowers or any Lender has defaulted in fulfilling against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under one this Agreement; and (vi) sixth, to such Defaulting Lender or more other agreements as otherwise directed by a court of competent jurisdiction; provided that if such payment is (x) a prepayment of the principal amount of any Loans or Reimbursement Obligations in respect of LC Disbursements which such a Defaulting Lender commits to extend credithas funded its participation obligations; and (y) made at a time when the conditions set forth in Section 4.02 are satisfied, such Issuing Bank payment shall not be required applied solely to issueprepay the Loans of, amend and Reimbursement Obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or increase Reimbursement Obligations owed to, any Letter of Credit and Defaulting Lender. In the Swingline Lender shall not be required to fund any Swingline Loanevent that the Administrative Agent, unless such the Administrative Borrower, the Issuing Bank or the Swingline Lender, as the case may be, shall have entered into arrangements with the Borrowers or such Lender, satisfactory to such Issuing Bank or the Swingline Lender, as the case may be, to defease any risk in respect of such Lender hereunder. In the event that each of the Administrative Agent, the Borrowers, the applicable Issuing Banks and, in the case of the U.S. Facility, the Swingline Lender agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and/or and LC Exposure of the Lenders under the applicable Facility shall be readjusted to reflect the inclusion of such Lender’s Commitment and on the such date of such readjustment such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Pro Rata Percentage. The rights and remedies against a Defaulting Lender under this Section 2.19 are in addition to other rights and remedies that the Borrowers, the Administrative Agent, the Issuing Bank, the Swingline Lender and the non-Defaulting Lenders may have against such Defaulting Lender. The arrangements permitted or required by this Section 2.19 shall be permitted under this Agreement, notwithstanding any limitation on Liens or the pro rata sharing provisions or otherwise.
Appears in 2 contracts
Sources: Revolving Syndicated Facility Agreement (Tronox LTD), Revolving Syndicated Facility Agreement (Tronox LTD)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) fees shall cease to accrue on the unfunded portion of the Commitments Commitment of such Defaulting Lender or be payable for the benefit of such Defaulting Lender pursuant to Section 2.12(a2.6(a);
(b) such Defaulting Lender shall not have the right to vote on any issue on which voting is required (other than to unpaid principal amount of the extent expressly provided in Section 9.02(b)) Term Loans and the Commitment and Revolving Exposure Commitments (or if the Revolving Commitments have been terminated, the Revolving Extensions of Credit) of such Defaulting Lender shall not be included in determining whether the Required all Lenders or the Supermajority Revolving Required Lenders have taken or may take any action hereunderhereunder (including any consent to any amendment or waiver pursuant to Section 10.1), provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender shall require the consent of such Defaulting Lender;
(c) if any Swingline Exposure or LC L/C Exposure exists at the time a such 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 non-Defaulting Lenders of the applicable Class in accordance with their respective Applicable Revolving Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Exposures under such Class Extensions of Commitments Credit plus such Defaulting Lender’s Swingline L/C Exposure and LC Exposure under such Class of Commitments does not exceed the total of all non-Defaulting Lenders’ Commitments of such Class, (y) no non-Defaulting Lender’s Revolving Exposure under such Class of Commitments is increased above such Lender’s Commitment of such Class as a result thereof and (z) no Event of Default has then occurred and is continuingCommitments;
(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 (x) first, in the case of the U.S. Borrower, prepay such Swingline Exposure and (y) second, Cash Collateralize, cash collateralize for the benefit of the applicable Issuing Bank, such Borrowers’ Lender only the Borrower’s obligations corresponding to such Defaulting Lender’s LC L/C Exposure under the applicable Class of Commitments (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.06(k) 9 for so long as such LC L/C Exposure is outstanding;
(iii) if a the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s LC L/C Exposure pursuant to clause (ii) above, such the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.12(b3.3(a) with respect to such Defaulting Lender’s LC L/C Exposure during the period such Defaulting Lender’s LC L/C Exposure is Cash Collateralizedcash collateralized;
(iv) if the LC L/C Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(bSection 3.3(a) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Revolving Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC L/C Exposure is neither reallocated nor Cash Collateralized cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any the Issuing Bank Lender or any other Lender hereunder, all letter of credit 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 applicable Issuing Bank Lender until and to the extent that such LC L/C Exposure is reallocated and/or Cash Collateralized; andcash collateralized;
(d) so long as such Lender is a Defaulting Lender, the applicable Issuing Bank under the applicable Facility Lender shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding L/C Exposure will be 100% covered by the Revolving Commitments of the non-Defaulting Lenders and/or Cash Collateral cash collateral will be provided by the applicable Borrower(s) Borrower in accordance with Section 2.20(c2.21(c), and participating interests in any such newly made Swingline Loan or newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i2.21(c)(i) (and such Defaulting Lender shall not participate therein). If ; and
(e) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender) shall, in lieu of being distributed to such Defaulting Lender, be retained by the Administrative Agent in a segregated account and, subject to any applicable requirements of law, be applied at such time or times as may be determined by the Administrative Agent (i) a Bankruptcy Event with respect first, to the Parent payment of any amounts owing by such Defaulting Lender shall occur following to the Second Amendment Effective Date and for so long as such event shall continue or Administrative Agent hereunder, (ii) second, to the funding of any Issuing Bank or the Swingline Loan in respect of which such Defaulting Lender has a good faith belief that failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (iii) third, to the reimbursement of the Issuing Lender pursuant to Section 3.4(a) in respect of any unreimbursed portion of any payment made by the Issuing Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, such Issuing Bank shall not be required to issue, amend or increase any Letter of Credit Credit, (iv) fourth, if so determined by the Administrative Agent and the Swingline Borrower, held in such account as cash collateral for future funding obligations of the Defaulting Lender shall not be required to fund any Swingline Loan, unless such Issuing Bank or the Swingline Lender, as the case may be, shall have entered into arrangements with the Borrowers or such Lender, satisfactory to such Issuing Bank or the Swingline Lender, as the case may be, to defease any risk in respect of any Loans under this Agreement and (v) fifth, to such Defaulting Lender hereunderor as otherwise directed by a court of competent jurisdiction. In the event that each of the Administrative Agent, the Borrowers, Borrower and the applicable Issuing Banks and, in the case of the U.S. Facility, the Swingline Lender each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and/or LC L/C Exposure of the Revolving Lenders under the applicable Facility shall be readjusted to reflect the inclusion of such Lender’s Revolving Commitment and on the such date of such readjustment such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Revolving Percentage.
Appears in 2 contracts
Sources: Credit Agreement (RE/MAX Holdings, Inc.), Credit Agreement (RE/MAX Holdings, Inc.)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) fees shall cease to accrue on the unfunded portion of the Commitments Commitment of such Defaulting Lender pursuant to Section 2.12(a2.13(a);
(b) such Defaulting Lender shall not have the right to vote on any issue on which voting is required (other than to the extent expressly provided in Section 9.02(b)) and the Commitment and Revolving Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or the Supermajority Revolving Lenders have taken or may take any action hereunder;
(c) if any Swingline Exposure or LC Exposure exists at the time 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 of the applicable Class in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Exposures under such Class of Commitments plus such Defaulting Lender’s Swingline Exposure and LC Exposure under such Class of Commitments does not exceed the total of all non-Defaulting Lenders’ Commitments of such Class, (y) no non-Defaulting Lender’s Revolving Exposure under such Class of Commitments is increased above such Lender’s Commitment of such Class as a result thereof and (z) no Event of Default has then occurred and is continuing;Commitments; and
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the applicable Borrower Borrowers shall within one (1) Business Day following notice by the Administrative Agent (x) first, in the case of the U.S. Borrower, prepay such Swingline Exposure and (y) second, Cash Collateralizecash collateralize, for the benefit of the applicable Issuing Bank, such the Borrowers’ obligations corresponding to such Defaulting Lender’s LC Exposure under the applicable Class of Commitments (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.06(k2.07(j) for so long as such LC Exposure is outstanding;
(iii) if a Borrower Cash Collateralizes the Borrowers cash collateralize any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, such Borrower the Borrowers shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.12(b2.13(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is Cash Collateralizedcash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(aSection 2.13(a) and 2.12(bSection 2.13(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither cash collateralized nor reallocated nor Cash Collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any the Issuing Bank or any Lender hereunder, all 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 applicable Issuing Bank until such LC Exposure is reallocated cash collateralized and/or Cash Collateralizedreallocated; and
(d) so long as such Lender is a Defaulting Lender, the applicable Issuing Bank under the applicable Facility shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or Cash Collateral cash collateral will be provided by the applicable Borrower(s) Borrowers in accordance with Section 2.20(c2.21(c), and participating interests in any such newly made Swingline Loan or newly issued or increased Letter of Credit or in any newly made Swingline Loan shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i2.21(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to the Parent of any Lender shall occur following the Second Amendment Effective Date date hereof and for so long as such event shall continue or (ii) any the Issuing Bank or the Swingline Lender has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, such the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit and the Swingline Lender shall not be required to fund any Swingline Loan, unless such the Issuing Bank or the Swingline Lender, as the case may be, shall have entered into arrangements with the Borrowers or such Lender, satisfactory to such the Issuing Bank or the Swingline Lender, as the case may be, to defease any risk in respect of such Lender hereunder. In the event that each of the Administrative Agent, the Borrowers, the applicable Issuing Banks and, in the case of the U.S. Facility, Bank and the Swingline Lender each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and/or and LC Exposure of the Lenders under the applicable Facility shall be readjusted to reflect the inclusion of such Lender’s Commitment and and, on the date of such readjustment readjustment, such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage.
Appears in 2 contracts
Sources: Credit Agreement (Lifetime Brands, Inc), Credit Agreement (Lifetime Brands, Inc)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) fees shall cease to accrue on the unfunded portion of the Commitments Commitment of such Defaulting Lender pursuant to Section 2.12(a2.03(a);
(b) such Defaulting Lender shall not have the right to vote on any issue on which voting is required (other than to the extent expressly provided in Section 9.02(b)) and the Commitment and Revolving Outstanding Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or the Supermajority Revolving Lenders have taken or may take any action hereunderhereunder (including any consent to any amendment or waiver pursuant to Section 8.01, other than those which require the consent of all Lenders or of each affected Lender);
(c) if any Swingline Exposure or LC Exposure exists Obligations exist at the time a such 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 non-Defaulting Lenders of the applicable Class in accordance with their respective Applicable Percentages Pro Rata Shares but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Exposures under such Class of Commitments LC Obligations plus such Defaulting Lender’s Swingline Exposure and LC Exposure under such Class of Commitments Obligations does not exceed the total of all non-Defaulting Lenders’ Commitments and the sum of such Class, (y) no all non-Defaulting Lenders’ Outstanding Credit Exposure plus such Defaulting Lender’s Revolving Exposure under such Class LC Obligations does not exceed the total of Commitments is increased above such Lender’s Commitment of such Class as a result thereof and (z) no Event of Default has then occurred and is continuingall non-Defaulting Lenders’ 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 (x) firstAgent, in the case of the U.S. Borrower, prepay such Swingline Exposure and (y) second, Cash Collateralize, cash collateralize for the benefit of the applicable Issuing Bank, such Borrowers’ LC Issuers only the Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure under the applicable Class of Commitments 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 2.06(k) Facility LC Collateral Account for so long as such LC Exposure is Obligations are outstanding;
(iii) if a the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s LC Exposure Obligations pursuant to clause (ii) above, such the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.12(b) Facility Fees or LC Fees with respect to such Defaulting Lender’s LC Exposure Obligations during the period such Defaulting Lender’s LC Exposure is Cash CollateralizedObligations are cash collateralized;
(iv) if the LC Exposure Obligations of the non-Defaulting Lenders is 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 in accordance with such non-Defaulting Lenders’ Applicable PercentagesPro Rata Shares; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure Obligations is neither cash collateralized nor reallocated nor Cash Collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank the LC Issuers or any Lender hereunder, all letter Facility Fees that otherwise would have been payable to such Defaulting Lender pursuant to Section 2.03(a) (solely with respect to the portion of credit fees such Defaulting Lender’s Commitment that was utilized by such LC Obligations) and LC Fees payable under to such Defaulting Lender pursuant to Section 2.12(b2.03(c) with respect to such Defaulting Lender’s LC Exposure Obligations shall be payable to the applicable Issuing Bank LC Issuers until such LC Exposure is reallocated Obligations are cash collateralized and/or Cash Collateralized; andreallocated;
(d) so long as such Lender is a Defaulting Lender, the applicable Issuing Bank under the applicable Facility no LC Issuer shall not be required to issue, amend issue or increase Modify any Letter of CreditFacility LC, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or Cash Collateral cash collateral will be provided by the applicable Borrower(s) Borrower in accordance with Section 2.20(c2.18(c), and participating interests in any such newly made Swingline Loan or newly issued or increased Letter of Credit Modified Facility LC shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i2.18(c)(i) (and such Defaulting Lender Lenders shall not participate therein);
(e) the 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 (i) 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 the Parent a parent of any Lender shall occur following the Second Amendment Effective Date date hereof and for so long as such event shall continue or (ii) any Issuing Bank or the Swingline Lender LC Issuer 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 Issuing Bank LC Issuer shall not be required to issue, amend or increase Modify any Letter of Credit and the Swingline Lender shall not be required to fund any Swingline LoanFacility LC, unless such Issuing Bank or the Swingline Lender, as the case may be, LC Issuer shall have entered into arrangements with the Borrowers Borrower or such Lender, reasonably satisfactory to such Issuing Bank or the Swingline Lender, as the case may be, LC Issuer to defease any risk to it in respect of such Lender hereunder. In the event that each of the Administrative Agent, the Borrowers, Borrower and the applicable Issuing Banks and, in the case of the U.S. Facility, the Swingline Lender LC Issuers each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and/or LC Exposure of the Lenders under the applicable Facility Obligations shall be readjusted to reflect the inclusion of such Lender’s Commitment and on the such date of such readjustment such Lender shall purchase at par on a ratable basis such of the Loans Outstanding Credit Exposures of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans Outstanding Credit Exposures in accordance with its Applicable PercentagePro 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 terms hereof (i) no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while such Lender was a Defaulting Lender, and (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.
Appears in 2 contracts
Sources: Credit Agreement (Dte Energy Co), Credit Agreement (Dte Energy Co)
Defaulting Lenders. Notwithstanding any provision of anything contained in this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) fees no commitment fee shall cease to accrue on for the unfunded portion account of the Commitments of such a Defaulting Lender so long as such Lender shall be a Defaulting Lender (except to the extent it is payable to an Issuing Bank pursuant to Section 2.12(aclause (d)(v) below);
(b) such Defaulting Lender shall not have the right to vote on any issue on which voting is required (other than to the extent expressly provided in Section 9.02(b)) and the Commitment and Revolving Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or Required Revolving Lenders, any Lender that at the Supermajority time is a Defaulting Lender (and the Loans and/or Revolving Lenders have taken or may take any action hereunderCommitment of such Defaulting Lender) shall be excluded and disregarded;
(c) the Borrower shall have the right, at its sole expense and effort (i) to seek one or more Persons reasonably satisfactory to the Administrative Agent and the Borrower to each become a substitute Lender and assume all or part of the Commitment and Loans of any Defaulting Lender and the Borrower, the Administrative Agent and any such substitute Lender shall execute and deliver, and such Defaulting Lender shall thereupon be deemed to have executed and delivered, an appropriately completed Assignment and Acceptance to effect such substitution or (ii) so long as no Event of Default under subsection 8.1(a) or 8.1(f) then exists or will exist immediately after giving effect to the respective prepayment, upon notice to the Administrative Agent, to prepay the Loans and, at the Borrower’s option, terminate the Commitments of such Defaulting Lender, in whole or in part, without premium or penalty;
(d) if any Swingline Exposure or LC Swing Line Exposure exists or any L/C Obligations exist at the time a Revolving Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline such Swing Line Exposure and LC Exposure of such Defaulting Lender L/C Obligations shall be reallocated re-allocated among the nonNon-Defaulting Lenders of the applicable Class in accordance with their respective Applicable Revolving Commitment Percentages but only to the extent (x) the sum of all nonNon-Defaulting Lenders’ Revolving Exposures under such Class of Commitments plus such Defaulting Lender’s Swingline Swing Line Exposure and LC Exposure under such Class of Commitments L/C Obligations does not exceed the total of all nonNon-Defaulting Lenders’ Commitments of such Class, (y) no non-Defaulting Lender’s Revolving Exposure under such Class of Commitments is increased above such Lender’s Commitment of such Class as a result thereof and (z) no Event of Default has then occurred and is continuingCommitments;
(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 (x) first, in the case of the U.S. Borrower, prepay such Swingline Defaulting Lender’s Swing Line Exposure and (y) second, Cash Collateralize, for the benefit of the applicable Issuing Bank, such Borrowers’ obligations corresponding to cash collateralize such Defaulting Lender’s LC Exposure under the applicable Class of Commitments L/C Obligations (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with on terms reasonably satisfactory to the procedures set forth in Section 2.06(k) applicable Issuing Banks for so long as such LC Exposure is L/C Obligations are outstanding;
(iii) if a Borrower Cash Collateralizes any portion of such Defaulting Lender’s LC Exposure L/C Obligations is cash collateralized pursuant to clause (ii) above, such the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.12(b) the L/C Facing Fee for participation with respect to such Defaulting Lender’s LC Exposure during the period portion of such Defaulting Lender’s LC Exposure L/C Obligations so long as it is Cash Collateralizedcash collateralized;
(iv) if any portion of such Defaulting Lender’s L/C Obligations is reallocated to the LC Exposure of the nonNon-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable letter of credit commission with respect to the Lenders pursuant to Sections 2.12(a) and 2.12(b) such portion shall be adjusted allocated among the Non-Defaulting Lenders in accordance with such non-Defaulting Lenders’ Applicable their Revolving Commitment Percentages; andor
(v) if all or any portion of such Defaulting Lender’s LC Exposure L/C Obligations is neither cash collateralized nor reallocated nor Cash Collateralized pursuant to clause (i) or (ii) abovethis subsection 3.14(d), then, without prejudice to any rights or remedies of any Issuing Bank or any Revolving Lender hereunder, all the commitment fee that otherwise would have been payable to such Defaulting Lender (with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such L/C Obligations) and the letter of credit fees commission payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure L/C Obligations shall be payable to the applicable Issuing Bank until such LC Exposure is reallocated L/C Obligations are cash collateralized and/or Cash Collateralized; andreallocated;
(de) so long as such any Revolving Lender is a Defaulting Lender, the applicable Swing Line Lender shall not be required to fund any Swing Line Loan and the Issuing Bank under the applicable Facility Banks shall not be required to issue, amend amend, extend or increase any Letter of Credit, unless it is they are respectively satisfied that the related exposure will be 100% covered by the Revolving Commitments of the nonNon-Defaulting Lenders and/or Cash Collateral will be provided by cash collateralized on terms reasonably satisfactory to the applicable Borrower(s) in accordance with Section 2.20(c)Issuing Bank, and participating interests participations in any such newly made Swingline Loan or newly issued or increased Letter of Credit or newly made Swing Line Loan shall be allocated among nonNon-Defaulting Lenders in a manner consistent accordance with Section 2.20(c)(i) their respective Revolving Commitment Percentages (and such Defaulting Lender Lenders shall not participate therein). If ;
(f) 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 subsection 10.7) may, in lieu of being distributed to such Defaulting Lender, be retained by the 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 (i) a Bankruptcy Event with respect first, to the Parent payment of any amounts owing by such Defaulting Lender shall occur following to the Second Amendment Effective Date and for so long as such event shall continue or Administrative Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to the Issuing Banks or Swing Line Lender hereunder, (iii) third, to the funding of any Loan or the funding or cash collateralization of any participation in any Swing Line Loan or 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 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, pro rata, 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 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 L/C Disbursements in respect of which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in subsection 6.2 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;
(g) In the event that the Administrative Agent, the Borrower, each applicable Issuing Bank or the Swingline Lender has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, such Issuing Bank shall not be required to issue, amend or increase any Letter of Credit and the Swingline Lender shall not be required to fund any Swingline Loan, unless such Issuing Bank or the Swingline Swing Line Lender, as the case may be, shall have entered into arrangements with the Borrowers or such Lender, satisfactory to such Issuing Bank or the Swingline Lender, as the case may be, to defease any risk in respect of such Lender hereunder. In the event that each of the Administrative Agent, the Borrowers, the applicable Issuing Banks and, in the case of the U.S. Facility, the Swingline Lender agrees that a Defaulting Lender that is a Revolving Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Swing Line Exposure and/or LC Exposure and L/C Obligations of the Lenders under the applicable Facility shall be readjusted to reflect the inclusion of such Lender’s Commitment and on the such date of such readjustment such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Revolving Commitment Percentage. The rights and remedies against a Defaulting Lender under this subsection 3.14 are in addition to other rights and remedies that the Borrower, the Administrative Agent, the Issuing Bank, the Swing Line Lender and the Non-Defaulting Lenders may have against such Defaulting Lender. The arrangements permitted or required by this subsection 3.14 shall be permitted under this Agreement, notwithstanding any limitation on Liens or the pro rata sharing provisions or otherwise; and
(h) In the event that any portion of a Defaulting Lender’s L/C Obligations or Swing Line Exposure are reallocated to Non-Defaulting Lenders pursuant to this subsection 3.14, then defined terms (including the term “Revolving Commitment Percentage”) shall, as necessary or advisable (in the reasonable determination of the Administrative Agent) be read as used in this Agreement (other than subsection 9.6) to give effect to such reallocation.
Appears in 2 contracts
Sources: Credit Agreement (Frontdoor, Inc.), Credit Agreement (Servicemaster Global Holdings Inc)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) fees shall cease to accrue on the unfunded portion of the Commitments Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a);
(b) such Defaulting Lender shall not have the right to vote on any issue on which voting is required (other than to the extent expressly provided in Section 9.02(b)) and the Commitment Revolving Commitments, LC Exposure and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or the Supermajority Revolving Lenders have taken or may take any action hereunderhereunder (including any consent to any amendment or waiver pursuant to Section 9.02), provided that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender affected thereby;
(c) if any Swingline Exposure or LC Exposure exists at the time a Lender becomes a Defaulting Lender then:
(i) all or any part of the such Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders of the applicable Class in accordance with their respective Applicable Percentages but only to the extent (xA) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures under such Class of Commitments plus such Defaulting Lender’s Swingline Exposure and LC Exposure under such Class of Commitments does not exceed the total of all non-Defaulting Lenders’ Commitments Revolving Commitments, (B) the conditions set forth in Section 4.02 are satisfied at the time of such Classreallocation (and, unless the Borrower shall have otherwise notified the Administrative Agent at such time, the Borrower shall be deemed to have represented and warranted that such conditions are satisfied at such time), and (yC) no nonsuch reallocation does not cause the aggregate Revolving Credit Exposure of any Non-Defaulting Lender to exceed such Non-Defaulting Lender’s Revolving Exposure under such Class of Commitments is increased above such Lender’s Commitment of such Class as a result thereof and (z) no Event of Default has then occurred and is continuingCommitment;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the applicable Borrower shall within one five Business Day Days following notice by the Administrative Agent (x) first, in the case of the U.S. Borrower, prepay such Swingline Exposure and (y) second, Cash Collateralize, cash collateralize for the benefit of the applicable Issuing Bank, such Borrowers’ Bank only the Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure under the applicable Class of Commitments (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.06(k2.06(j) for so long as such LC Exposure is outstanding;
(iii) if a the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, such the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is Cash Collateralizedcash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections Section 2.12(a) and Section 2.12(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither cash collateralized nor reallocated nor Cash Collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any the Issuing Bank or any other Lender hereunder, all facility fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Revolving Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank until such LC Exposure is reallocated cash collateralized and/or Cash Collateralizedreallocated; and
(d) so long as such Lender is a Defaulting Lender, the applicable Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Bank under the applicable Facility shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Revolving Commitments of the non-Defaulting Lenders and/or Cash Collateral cash collateral will be provided by the applicable Borrower(s) Borrower in accordance with Section 2.20(c), and participating interests in any such newly made Swingline Loan or newly issued or increased Letter of Credit or newly made Swingline Loan shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to the a Parent of any Lender shall occur following the Second Amendment Effective Date date hereof and for so long as such event shall continue or (ii) any Issuing Bank or the Swingline Lender or the Issuing Bank has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend creditcredit (the Lender in such case, such an “Affected Lender”), the Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit and to the extent such exposure would have been supported by such Affected Lender, unless the Swingline Lender shall not be required to fund any Swingline Loan, unless such Issuing Bank or the Swingline LenderIssuing Bank, as the case may be, shall have entered into arrangements with the Borrowers Borrower or such Affected Lender, satisfactory to such Issuing Bank the Swingline Lender or the Swingline LenderIssuing Bank, as the case may be, to defease any risk to it in respect of such Affected Lender hereunder. In the event that each of the Administrative Agent, the Borrowers, the applicable Issuing Banks and, in the case of the U.S. FacilityBorrower, the Swingline Lender and the Issuing Bank each agrees that a Defaulting Lender or an Affected Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and/or and LC Exposure of the Lenders under the applicable Facility shall be readjusted to reflect the inclusion of such Lender’s Revolving Commitment and on the such date of such readjustment such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage.
Appears in 2 contracts
Sources: Credit Agreement (Tupperware Brands Corp), Credit Agreement (Tupperware Brands Corp)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) fees the Commitment Fee shall cease to accrue on the unfunded portion of the Commitments Commitment of such Lender so long as it is a Defaulting Lender (except to the extent it is payable to the LC Issuer pursuant to Section 2.12(aclause (b)(v) below);
(b) such Defaulting Lender shall not have the right to vote on any issue on which voting is required (other than to the extent expressly provided in Section 9.02(b)) and the Commitment and Revolving Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or the Supermajority Revolving Lenders have taken or may take any action hereunder;
(c) if any Swingline Exposure or LC Exposure exists Obligations are outstanding at the time a Lender becomes a Defaulting Lender then:
(i) if no Default has occurred and is continuing, all or any part of the Swingline Exposure and such outstanding LC Exposure of such Defaulting Lender Obligations shall be reallocated among the non-Defaulting Lenders of the applicable Class in accordance with their respective Applicable Percentages but only to the extent the Facility Usage (xexcluding the Defaulting Lender’s Applicable Percentage of the Facility Usage) the sum of all non-Defaulting Lenders’ Revolving Exposures under such Class of Commitments plus such Defaulting Lender’s Swingline Exposure and Applicable Percentage of such outstanding LC Exposure under such Class of Commitments Obligations does not exceed the total of all non-Defaulting Lenders’ Commitments of such Class, (y) no non-Defaulting Lender’s Revolving Exposure under such Class of Commitments is increased above such Lender’s Commitment of such Class as a result thereof and (z) no Event of Default has then occurred and is continuingCommitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effectedeffected (whether by reason of the occurrence and continuance of a Default or the non-Defaulting Lenders’ Commitments being exceeded by such reallocation), the applicable Borrower shall within one Business Day following notice by the Administrative Agent (x) first, in Cash Collateralize the case of the U.S. Borrower, prepay such Swingline Exposure and (y) second, Cash Collateralize, for the benefit of the applicable Issuing Bank, such Borrowers’ obligations corresponding to such Defaulting Lender’s Applicable Percentage of the LC Exposure under the applicable Class of Commitments Obligations (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.06(k) 2.11 for so long as such LC Exposure is Obligations are outstanding;
(iii) if a Borrower Cash Collateralizes any portion of such the Defaulting Lender’s Applicable Percentage of the LC Exposure Obligations is Cash Collateralized pursuant to clause (ii) above, such Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.12(b) LC Participation Fee with respect to such the Applicable Percentage of the Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure Obligations so long as it is Cash Collateralized;
(iv) if any portion of the Defaulting Lender’s Applicable Percentage of the outstanding LC Exposure of Obligations is reallocated to the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable LC Participation Fee with respect to the Lenders pursuant to Sections 2.12(a) and 2.12(b) such portion shall be adjusted allocated among the non-Defaulting Lenders in accordance with such non-Defaulting Lenders’ their Applicable Percentages; andor
(v) if all or any portion of such Defaulting Lender’s Applicable Percentage of the outstanding LC Exposure Obligations is neither reallocated nor Cash Collateralized nor reallocated pursuant to clause (i) or (ii) abovethis Section 2.17(b), then, without prejudice to any rights or remedies of any Issuing Bank the LC Issuer or any Lender hereunder, all letter of credit fees the LC Participation Fee payable under Section 2.12(b) with respect to such Defaulting Lender’s Applicable Percentage of the outstanding LC Exposure Obligations shall be payable to the applicable Issuing Bank LC Issuer until such portion of the Defaulting Lender’s Applicable Percentage of the outstanding LC Exposure Obligations is reallocated Cash Collateralized and/or Cash Collateralized; andreallocated;
(dc) so long as such any Lender is a Defaulting Lender, the applicable Issuing Bank under the applicable Facility LC Issuer shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or Cash Collateral will be provided by the applicable Borrower(s) Collateralized in accordance with Section 2.20(c2.17(b), and participating interests participations in any such newly made Swingline Loan or newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent accordance with Section 2.20(c)(i) their respective Applicable Percentages (and such Defaulting Lender Lenders shall not participate therein). If ; and
(d) 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 but excluding Section 10.13(b)) shall, subject to any applicable requirements of Law, be applied (i) a Bankruptcy Event with respect first, to the Parent payment of any amounts owing by such Defaulting Lender shall occur following to the Second Amendment Effective Date and for so long as such event shall continue or Administrative Agent hereunder, (ii) second, pro rata, to the payment of any Issuing Bank amounts owing by such Defaulting Lender to the LC Issuer hereunder, (iii) third, to the funding of any Loan or the Swingline Lender has a good faith belief that funding or Cash Collateralization of any Lender has defaulted participation in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, such Issuing Bank shall not be required to issue, amend or increase any Letter of Credit and the Swingline in respect of which such Defaulting Lender shall not be required has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (iv) fourth, pro rata, to the payment of any Swingline Loan, unless such Issuing Bank amounts owing to the LC Issuer or the Swingline other Lenders as a result of any judgment of a court of competent jurisdiction obtained by Borrower or any such Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement and (v) fifth, 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 under Section 2.09(a) in respect of an LC Credit Extension which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 4.02 are satisfied, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations under Section 2.09(a) owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations under Section 2.09(a) owed to, any Defaulting Lender. In the event that the Administrative Agent, Borrower, the LC Issuer, as the case may be, shall have entered into arrangements with the Borrowers or such Lender, satisfactory to such Issuing Bank or the Swingline Lender, as the case may be, to defease any risk in respect of such Lender hereunder. In the event that each of the Administrative Agent, the Borrowers, the applicable Issuing Banks and, in the case of the U.S. Facility, the Swingline Lender agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and/or Applicable Percentages of the outstanding LC Exposure Obligations of the Lenders under the applicable Facility shall be readjusted to reflect the inclusion of such Lender’s Commitment and on the such date of such readjustment such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage. The rights and remedies against a Defaulting Lender under this Section 2.17 are in addition to other rights and remedies that Borrower, the Administrative Agent, the LC Issuer and the non-Defaulting Lenders may have against such Defaulting Lender. The arrangements permitted or required by this Section 2.17 shall be permitted under this Agreement, notwithstanding any limitation on Liens or the pro rata sharing provisions or otherwise.
Appears in 2 contracts
Sources: Credit Agreement (Energy Transfer Equity, L.P.), Credit Agreement (Energy Transfer Equity, L.P.)
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 Lender is a Defaulting Lender:
(ai) fees shall cease to accrue on the unfunded portion of the Commitments Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a2.11(a);
(bii) such Defaulting Lender shall not have the right to vote on any issue on which voting is required (other than to the extent expressly provided in Section 9.02(b)) and the Revolving Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or the Supermajority Revolving Lenders have taken or may take any action hereunderhereunder (including any consent to any amendment, waiver or other modification pursuant to Section 9.02), and the voting rights of Defaulting Lenders shall be limited as specifically provided in Section 9.02(b);
(ciii) if any Swingline Exposure or LC Exposure exists at the time a such Lender becomes a Defaulting Lender then:
(i1) all so long as no Event of Default has occurred and is continuing as to which the Administrative Agent has received written notice from the Borrower or a Revolving Lender at the time of any part of such reallocation, the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders of the applicable Class in accordance with their respective Applicable Percentages (disregarding for this purpose the Revolving Commitments of any Defaulting Lenders for all purposes of such calculation) but only to the extent (x) that the sum of all non-Defaulting Lenders’ Revolving Credit Exposures under such Class of Commitments plus such Defaulting Lender’s Swingline Exposure and LC Exposure under such Class of Commitments does not exceed the total of all non-Defaulting Lenders’ Commitments of such Class, (y) no non-Defaulting Lender’s Revolving Exposure under such Class of Commitments is increased above such Lender’s Commitment of such Class as a result thereof and (z) no Event of Default has then occurred and is continuingCommitments;
(ii2) if the reallocation described in clause (i1) above cannot, or can only partially, be effected, the applicable Borrower shall within one (1) Business Day following notice by the Administrative Agent (x) first, in prepay the case of the U.S. Borrower, prepay such Defaulting Lender’s Swingline Exposure and (y) second, Cash Collateralize, cash collateralize for the benefit of the applicable Issuing Bank, such Borrowers’ Bank only the Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure under the applicable Class of Commitments (after giving effect to any partial reallocation pursuant to clause (i1) above) in accordance with the procedures set forth in Section 2.06(k2.05(k) for so long as such LC Exposure is outstanding;
(iii3) if a the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii2) above, such the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.12(b2.11(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is Cash Collateralizedcash collateralized;
(iv4) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i1) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(bSection 2.11(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; and
(v5) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor Cash Collateralized cash collateralized pursuant to clause (i1) or (ii2) above, then, without prejudice to any rights or remedies of any the Issuing Bank or any other Lender hereunder, all fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and 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 Bank until and to the extent that such LC Exposure is reallocated and/or Cash Collateralized; andcash collateralized;
(div) so long as such any Lender is a Defaulting Lender, the applicable Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Bank under the applicable Facility shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Revolving Commitments of the non-Defaulting Lenders and/or Cash Collateral cash collateral will be provided by the applicable Borrower(s) Borrower in accordance with Section 2.20(c2.20(a)(iii), and participating interests in any such newly made Swingline Loan or any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i2.20(a)(iii)(1) (and such Defaulting Lender shall not participate therein). ; and
(v) the Borrower may terminate the unused amount of the Revolving Commitment of a Defaulting Lender upon not less than three Business Days’ prior notice to the Administrative Agent (which will promptly notify the Lenders thereof), and in such event the provisions of Section 2.17 will apply to all amounts thereafter paid by the Borrower for the account of such Defaulting Lender that is a Lender under this Agreement (in each case whether on account of principal, interest, fees, indemnity or other amounts), provided that such termination will not be deemed to be a waiver or release of any claim the Borrower, the Administrative Agent, the Issuing Bank, the Swingline Lender or any other Lender may have against such Defaulting Lender.
(b) If (i) a Bankruptcy Event with respect to the Parent a parent entity of any Revolving Lender shall occur following the Second Amendment Effective Date and for so long as such event shall continue or (ii) any Issuing Bank or the Swingline Lender or the Issuing Bank has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, such the Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit and Credit, unless the Swingline Lender shall not be required to fund any Swingline Loan, unless such Issuing Bank or the Swingline LenderIssuing Bank, as the case may be, shall have entered into arrangements with the Borrowers Borrower or such Lender, satisfactory to such Issuing Bank the Swingline Lender or the Swingline LenderIssuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that each of .
(c) If the Administrative Agent, the Borrowers, the applicable Issuing Banks and, in the case of the U.S. FacilityBorrower, the Swingline Lender and the Issuing Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and/or and LC Exposure of the Revolving Lenders under the applicable Facility shall be readjusted to reflect the inclusion of such Lender’s Revolving Commitment and on the such date of such readjustment such Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Revolving Loans in accordance with its Applicable PercentagePercentage (whereupon such Lender shall cease to be a Defaulting Lender).
Appears in 2 contracts
Sources: Credit Agreement (Crown Media Holdings Inc), Credit Agreement (Crown Media Holdings Inc)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) fees shall cease to accrue on the unfunded portion of the Commitments Commitment of such Defaulting Lender pursuant to Section 2.12(a);
(b) such Defaulting Lender shall not have the right to vote on any issue on which voting is required (other than to the extent expressly provided in Section 9.02(b)) and the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or the Supermajority Revolving Lenders have taken or may take any action hereunderhereunder (including any consent to any amendment, waiver or other modification pursuant to Section 11.02); provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender affected thereby;
(c) if any Swingline Exposure or LC Exposure exists at the time a such 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 non-Defaulting Lenders of the applicable Class in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures under such Class of Commitments plus such Defaulting Lender’s Swingline Exposure and LC Exposure under such Class of Commitments does not exceed the total of all non-Defaulting Lenders’ Commitments and to the extent the sum of such Class, (y) no each non-Defaulting Lender’s Revolving Credit Exposure under and LC Exposure does not exceed such Class of Commitments is increased above such non-Defaulting Lender’s Commitment of such Class as a result thereof and (z) no Event of Default has then occurred and is continuingCommitment;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the applicable Borrower shall within one (1) Business Day following notice by the Administrative Agent (x) first, in the case of the U.S. Borrower, prepay such Swingline Exposure and (y) second, Cash Collateralize, cash collateralize for the benefit of the applicable Issuing Bank, such Borrowers’ LC Bank only the Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure under the applicable Class of Commitments (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 2.06(k) 8.01 for so long as such LC Exposure is outstanding;
(iii) if a the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, such the Borrower shall not be required to pay 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 any fronting fee), in each case with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is Cash Collateralizedcash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and Section 2.12(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; and;
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor Cash Collateralized cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing LC Bank or any other Lender hereunder, all Facility Fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing LC Bank until and to the extent that such LC Exposure is reallocated and/or Cash Collateralizedcash collateralized; and
(d) so long as such Lender is a Defaulting Lender, the applicable Issuing no LC Bank under the applicable Facility shall not be required to issue, amend or increase any Letter of Credit, unless it is reasonably satisfied that (i) the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or Cash Collateral cash collateral will be provided by the applicable Borrower(s) Borrower in accordance with Section 2.20(c), and (ii) participating interests in any such newly made Swingline Loan or newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event or a Bail-In Action with respect to the a Parent of any Lender shall occur following the Second Amendment Effective Date date hereof and for so long as such event shall continue or (ii) any Issuing LC Bank or the Swingline Lender has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, such Issuing no LC Bank shall not be required to issue, amend or increase any Letter of Credit and the Swingline Lender shall not be required to fund any Swingline LoanCredit, unless such Issuing the applicable LC Bank or the Swingline Lender, as the case may be, shall have entered into arrangements with the Borrowers Borrower or such Lender, satisfactory to such Issuing the applicable LC Bank or the Swingline Lender, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that each of the Administrative Agent, the Borrowers, Borrower and the applicable Issuing Banks and, in the case of the U.S. Facility, the Swingline Lender ▇▇ ▇▇▇▇▇ each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and/or LC Exposure of the Lenders under the applicable Facility shall be readjusted to reflect the inclusion of such Lender’s Commitment and on the such date of such readjustment such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage.
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 Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) fees shall cease to accrue on the unfunded portion of the Commitments Commitment of such Defaulting Lender pursuant to Section 2.12(a)2.10;
(b) such Defaulting Lender shall not have the right to vote on any issue on which voting is required (other than to the extent expressly provided in Section 9.02(b)) and the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required all Lenders or the Supermajority Revolving Required Lenders have taken or may take any action hereunderhereunder (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender affected thereby;
(c) if any Swingline Exposure or LC Exposure exists at the time a such Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders of the applicable Class in accordance with their respective Applicable Percentages but only to the extent that (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures under such Class of Commitments plus such Defaulting Lender’s Swingline Exposure and LC Exposure under such Class of Commitments does not exceed the total of all non-Defaulting Lenders’ Revolving Commitments of such Class, and (y) no non-Defaulting Lender’s Revolving Exposure under the conditions set forth in Section 4.02 are satisfied at such Class of Commitments is increased above such Lender’s Commitment of such Class as a result thereof and (z) no Event of Default has then occurred and is continuingtime;
(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 (x) first, in the case of the U.S. Borrower, prepay such Swingline Exposure and (y) second, Cash Collateralize, cash collateralize for the benefit of the applicable Issuing Bank, such Borrowers’ Bank only the Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure under the applicable Class of Commitments (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.06(k2.04(j) for so long as such LC Exposure is outstanding;
(iii) if a the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, such the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.12(b2.04(j) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is Cash Collateralizedcash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(b) Section 2.10 shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor Cash Collateralized cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any the Issuing Bank or any other Lender hereunder, all 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 applicable Issuing Bank until and to the extent that such LC Exposure is reallocated and/or Cash Collateralizedcash collateralized; and
(d) so long as such Lender is a Defaulting Lender, the applicable Issuing Bank under the applicable Facility shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or Cash Collateral cash collateral will be provided by the applicable Borrower(s) Borrower in accordance with Section 2.20(c2.18(c), and participating interests in any such newly made Swingline Loan or newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i2.18(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to the Parent a parent of any Lender shall occur following the Second Amendment Effective Date date hereof and for so long as such event shall continue or (ii) any the Issuing Bank or the Swingline Lender has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, such the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit and the Swingline Lender shall not be required to fund any Swingline LoanCredit, unless such the Issuing Bank or the Swingline LenderBank, as the case may be, shall have entered into arrangements with the Borrowers Borrower or such Lender, satisfactory to such the Issuing Bank or the Swingline Lender, as the case may beBank, to defease any risk to it in respect of such Lender hereunder. .
(e) In the event that each of the Administrative Agent, the BorrowersBorrower, and the applicable Issuing Banks and, in the case of the U.S. Facility, the Swingline Lender Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and/or LC Exposure of the Lenders under the applicable Facility shall be readjusted to reflect the inclusion of such Lender’s Revolving Commitment and on the such date of such readjustment such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage.
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 Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) fees shall cease to accrue on the unfunded unused portion of the Commitments Commitment of such Defaulting Lender pursuant to Section 2.12(a§2.4(f);
(b) such Defaulting Lender shall not have the right to vote on any issue on which voting is required (other than to the extent expressly provided in Section 9.02(b)) and the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or the Supermajority Revolving Lenders have taken or may take any action hereunderhereunder (including any consent to any amendment, waiver or other modification pursuant to §25); provided that any waiver, amendment or modification that increases the Commitment of a Defaulting Lender, forgives all or any portion of the principal amount of any Loan or Reimbursement Obligation or interest thereon owing to a Defaulting Lender, reduces the Applicable Margin on the underlying interest rate owing to a Defaulting Lender or extends the Maturity Date shall require the consent of such Defaulting Lender;
(c) if any Swingline Exposure or unfunded LC Exposure exists at the time a such Lender becomes a Defaulting Lender then:
(i) so long as the conditions set forth in §11 are satisfied at the time of such reallocation (and, unless the Borrower shall have otherwise notified the Administrative Agent at such time, the Borrower shall be deemed to have represented and warranted that such conditions are satisfied at such time), all or any part of the Swingline Exposure and unfunded LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders of the applicable Class in accordance with their respective Applicable Commitment Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures under such Class of Commitments plus such Defaulting Lender’s Swingline Exposure and unfunded LC Exposure under such Class of Commitments does not exceed the total of all non-Defaulting Lenders’ Commitments of such Class, and (y) no such reallocation does not cause a non-Defaulting Lender’s Revolving Credit Exposure under such Class of Commitments is increased above such Lender’s Commitment of such Class as a result thereof and (z) no Event of Default has then occurred and is continuingto exceed its Commitment;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the applicable Borrower shall (x) within one two Business Day Days following notice by the Administrative Agent (x) first, in the case of the U.S. Borrower, prepay such Swingline Exposure (or the portion remaining after a partial reallocation as aforesaid) and (y) secondwithin five Business Days following notice by the Administrative Agent, Cash Collateralize, cash collateralize for the benefit of the applicable Issuing Bank, such Borrowers’ Fronting Bank only the Borrower’s obligations corresponding to such Defaulting Lender’s unfunded LC Exposure under the applicable Class of Commitments (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.06(k) §3.8 for so long as such unfunded LC Exposure is outstanding;
(iii) if a the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s unfunded LC Exposure pursuant to clause (ii) above, such the Borrower shall not be required to pay any fees, and such fees shall not accrue, to such Defaulting Lender pursuant to Section 2.12(b) §3.6 with respect to such Defaulting Lender’s unfunded LC Exposure during the period such Defaulting Lender’s unfunded LC Exposure is Cash Collateralizedcash collateralized;
(iv) if the unfunded LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(b) §3.6 shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable reallocated Commitment Percentages; and
(v) if all or any portion of such Defaulting Lender’s unfunded LC Exposure is neither reallocated nor Cash Collateralized cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing the Fronting Bank or any other Lender hereunder, all letter Facility Fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of credit fees such Defaulting Lender’s Commitment that was utilized by such unfunded LC Exposure) under §2.4(f) and Letter of Credit Fees payable under Section 2.12(b) §3.6 with respect to such Defaulting Lender’s unfunded LC Exposure shall be payable to the applicable Issuing Fronting Bank until and to the extent that such unfunded LC Exposure is reallocated and/or Cash Collateralizedcash collateralized; and
(d) so long as such Lender is a Defaulting Lender, the applicable Issuing Swing Lender shall not be required to fund any Swing Loan and the Fronting Bank under the applicable Facility shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure to the Swing Lender and the Defaulting Lender’s then outstanding unfunded LC Exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or Cash Collateral cash collateral will be provided by the applicable Borrower(s) Borrower in accordance with Section 2.20(c§4.12(c), and participating interests in any such newly made Swingline Swing Loan or any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i§4.12(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to the a Parent of any Lender shall occur following the Second Amendment Effective Date date hereof and for so long as such event shall continue or (ii) continue, the Swing Lender shall not be required to fund any Issuing Bank or Swing Loan and the Swingline Lender has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, such Issuing Fronting Bank shall not be required to issue, amend or increase any Letter of Credit Credit, unless the related exposure and the Swingline Lender shall not Defaulting Lender’s then outstanding unfunded LC Exposure will be required to fund any Swingline Loan, unless such Issuing Bank 100% covered by the Commitments of the non-Defaulting Lenders or the Swingline LenderSwing Lender or the Fronting Bank, as the case may be, shall have entered into arrangements with the Borrowers Borrower or such Lender, satisfactory to such Issuing Bank the Swing Lender or the Swingline LenderFronting Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that each of the Administrative Agent, the BorrowersBorrower, the applicable Issuing Banks and, in Swing Lender and the case of the U.S. Facility, the Swingline Lender Fronting Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and/or and unfunded LC Exposure of the Lenders under the applicable Facility shall be readjusted to reflect the inclusion of such Lender’s Commitment and on the such date of such readjustment such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Competitive Bid Loans and Swing Loans) and the funded and unpaid participations of the other Lenders in the Swing Loans and Letters of Credit as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Commitment Percentage.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Mack Cali Realty L P), Revolving Credit Agreement (Mack Cali Realty L P)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) fees shall cease to accrue on the unfunded portion of the Commitments Commitment of such Defaulting Lender pursuant to Section 2.12(a2.5(a);
(b) such Defaulting Lender shall not have the right to vote on any issue on which voting is required (other than to the extent expressly provided in Section 9.02(b)) and the Commitment and Revolving Exposure Extensions of Credit of such Defaulting Lender shall not be included in determining whether the Required all Lenders or the Supermajority Revolving Required Lenders have taken or may take any action hereunderhereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.1); provided that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender;
(c) if any Swingline Exposure or LC L/C Exposure exists at the time a such 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 non-Defaulting Lenders of the applicable Class in accordance with their respective Applicable Revolving Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Exposures under such Class Extensions of Commitments Credit plus such Defaulting Lender’s Swingline Exposure and LC L/C Exposure under such Class of Commitments does not exceed the total of all non-Defaulting Lenders’ Commitments of such Class, (y) no non-Defaulting Lender’s Revolving Exposure under such Class of Commitments is increased above such Lender’s Commitment of such Class as a result thereof and (z) no Event of Default has then occurred and is continuingCommitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the applicable Borrower shall shall, within one two Business Day Days following notice by the Administrative Agent (x) first, in the case of the U.S. Borrower, prepay such Swingline Exposure and (y) second, Cash Collateralize, cash collateralize for the benefit of the applicable Issuing Bank, such Borrowers’ Lender only the Borrower’s obligations corresponding to such Defaulting Lender’s LC L/C Exposure under the applicable Class of Commitments (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.06(k) 8 for so long as such LC L/C Exposure is outstanding;
(iii) if a the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s LC L/C Exposure pursuant to clause (ii) above, such the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.12(b3.3(a) with respect to such Defaulting Lender’s LC L/C Exposure during the period such Defaulting Lender’s LC L/C Exposure is Cash Collateralizedcash collateralized;
(iv) if the LC L/C Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(aSection 2.5(a) and 2.12(bSection 3.3(a) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Revolving Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC L/C Exposure is neither reallocated nor Cash Collateralized cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any the Issuing Bank Lender or any other Lender hereunder, all letter of credit 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 applicable Issuing Bank Lender until and to the extent that such LC L/C Exposure is reallocated and/or Cash Collateralizedcash collateralized; and
(d) so long as such Lender is a Defaulting Lender, the applicable Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Bank under the applicable Facility Lender shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding L/C Exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or Cash Collateral cash collateral will be provided by the applicable Borrower(s) 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 newly made Swingline Loan or any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i2.19(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to the Parent of any Lender shall occur following the Second Amendment Effective Date and for so long as such event shall continue or (ii) any Issuing Bank or the Swingline Lender has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, such Issuing Bank shall not be required to issue, amend or increase any Letter of Credit and the Swingline Lender shall not be required to fund any Swingline Loan, unless such Issuing Bank or the Swingline Lender, as the case may be, shall have entered into arrangements with the Borrowers or such Lender, satisfactory to such Issuing Bank or the Swingline Lender, as the case may be, to defease any risk in respect of such Lender hereunder. In the event that each of the Administrative Agent, the Borrowers, the applicable Issuing Banks and, in the case of the U.S. Facility, the Swingline Lender agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and/or LC Exposure of the Lenders under the applicable Facility shall be readjusted to reflect the inclusion of such Lender’s Commitment and on the date of such readjustment such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage.
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 Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) fees shall cease to accrue on the unfunded portion of the Commitments Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a2.05(a);
(b) such Defaulting Lender shall not have the right to vote on any issue on which voting is required (other than to the extent expressly provided in Section 9.02(b9.08(b)) and the Revolving Commitment and Revolving Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or the Supermajority Revolving Lenders have taken or may take any action hereunder;
(c) if any Swingline Exposure Exposure, Floorplan Advances or LC Exposure exists at the time a Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure Exposure, Floorplan Obligations and LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders of the applicable Class in accordance with their respective Applicable Percentages Pro Rata Percentages, (x) but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Exposures under such Class of Commitments Exposure plus such Defaulting Lender’s Swingline Exposure Exposure, Floorplan Obligations and LC Exposure under such Class of Commitments does not exceed the total of all non-Defaulting Lenders’ Revolving Commitments of such Class, and (y) no non-Defaulting Lender’s Revolving Exposure under such Class of Commitments is increased above such Lender’s Commitment of such Class as a result thereof and (z) only to the extent that no Event of Default has then occurred and is continuingbe continuing as of the date the applicable Lender became a Defaulting Lender;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the applicable Borrower Borrowers shall within one three Business Day Days following notice by the Administrative Agent (x) first, in the case of the U.S. Borrower, prepay such Swingline Exposure Exposure, and (y) second, Cash Collateralizecash collateralize, for the benefit of the applicable Issuing BankBanks and the Floorplan Funding Agent, such the Borrowers’ obligations corresponding to such Defaulting Lender’s LC Exposure under the applicable Class of Commitments and/or Floorplan Obligations (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.06(k2.23(j) and Section 2.26(h), respectively, for so long as such LC Exposure is and/or Floorplan Obligations are outstanding;
(iii) if a Borrower Cash Collateralizes the Borrowers cash collateralize any portion of such Defaulting Lender’s LC Exposure or Floorplan Obligations pursuant to clause (ii) above, such Borrower the Borrowers or the Administrative Agent, as applicable, shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.12(b2.05(b) with respect to such Defaulting Lender’s LC Exposure and pursuant to Section 2.05(d) with respect to such Defaulting Lender’s Floorplan Obligations during the period such Defaulting Lender’s LC Exposure and/or Floorplan Obligations, as applicable, is Cash Collateralizedcash collateralized;
(iv) if the LC Exposure or Floorplan Obligations of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a2.05(a), 2.05(b) and 2.12(b) and/or 2.05(d), as applicable, shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Pro Rata Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure and/or Floorplan Obligations is neither reallocated nor Cash Collateralized cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any Lender hereunder, all letter of credit fees payable under Section 2.12(b2.05(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank Banks entitled to reimbursement until such LC Exposure is reallocated and/or Cash Collateralized; andcash collateralized, and no interest with respect to Floorplan Advances payable under Section 2.06(d) with respect to such Defaulting Lender shall be payable by the Administrative Agent until such Defaulting Lender’s Floorplan Obligations are reallocated and/or cash collateralized;
(d) so long as such Lender is a Defaulting Lender, the applicable Swingline Lender shall not be required to fund any Swingline Loan, the Issuing Bank under the applicable Facility Banks shall not be required to issue, amend or increase any Letter of CreditCredit and the Floorplan Funding Agent shall not be required to issue any Floorplan Approval (and the Floorplan Funding Agent may cancel any Floorplan Approvals (if a Floorplan Obligation has not arisen with respect thereto)), unless it the Swingline Lender, the Applicable Issuing Bank or the Floorplan Funding Agent, as the case may be, is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or Cash Collateral cash collateral will be provided by the applicable Borrower(s) Borrowers in accordance with Section 2.20(c2.27(c), and participating interests in any such newly made Swingline Loan or Loan, newly issued or increased Letter of Credit or newly issued Floorplan Approval shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i2.27(c)(i) (and such Defaulting Lender shall not participate therein). If ; and
(ie) a Bankruptcy Event with respect to the Parent of any Lender shall occur following the Second Amendment Effective Date and for so long as such 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 2.18) 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 2.27(e) shall continue for all other purposes be treated as having been paid to such Defaulting Lender) 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, pro rata, to the payment of any amounts owing by such Defaulting Lender to any Issuing Bank Bank, Swingline Lender or the Floorplan Funding Agent hereunder, (iii) third, if the Administrative Agent so determines or is reasonably requested by an Issuing Bank, the Swingline Lender has a good faith belief that or the Floorplan Funding Agent, held in such account as cash collateral for future funding obligations of the Defaulting Lender in respect of any 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, such Issuing Bank shall not be required to issue, amend or increase any Letter of Credit and the Swingline Lender shall not be required to fund any Swingline Loan, unless such Issuing Bank Letter of Credit or the Swingline LenderFloorplan Obligations, as the case may be, shall have entered into arrangements with the Borrowers or such Lender, satisfactory to such Issuing Bank or the Swingline Lender, as the case may be(iv) fourth, to defease the funding of any risk Loan in respect of which such Defaulting Lender hereunderhas failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (v) fifth, if the Administrative Agent or the Borrowers (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, an Issuing Bank, the Swingline Lender or the Floorplan Funding Agent as a result of any judgment of a court of competent jurisdiction obtained by any Lender, such Issuing Bank, the Swingline Lender or the Floorplan Funding Agent 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 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 payment is (x) a payment of the principal amount of any Loans or reimbursement obligations in respect of LC Disbursements or Floorplan Obligations which such Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 4.01 are satisfied, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Lender. In the event that If each of the Administrative Agent, the Borrowers, the applicable Issuing Banks and, in the case of the U.S. FacilityBanks, the Swingline Lender and the Floorplan Funding Agent agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and/or Exposure, LC Exposure and Floorplan Obligations of the Lenders under the applicable Facility shall be readjusted to reflect the inclusion of such Lender’s Revolving Commitment and on the date of such readjustment such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Pro Rata Percentage.
Appears in 2 contracts
Sources: Revolving Loan Credit Agreement (ConvergeOne Holdings, Inc.), Revolving Loan Credit Agreement (Forum Merger Corp)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) fees shall cease to accrue on the unfunded portion of the Commitments of such Defaulting Lender pursuant to Section 2.12(a);
(b) such Defaulting Lender shall not have the right to vote on any issue on which voting is required (other than to the extent expressly provided in Section 9.02(b)) and the Commitment and Revolving Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or the Supermajority Revolving Lenders have taken or may take any action hereunder;
(c) if any Swingline Exposure or LC Exposure exists at the time 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 of the applicable Class in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Exposures under such Class of Commitments plus such Defaulting Lender’s Swingline Exposure and LC Exposure under such Class of Commitments does not exceed the total of all non-Defaulting Lenders’ Commitments of such Class, (y) no non-Defaulting Lender’s Revolving Exposure under such Class of Commitments is increased above such Lender’s Commitment of such Class as a result thereof and (z) no Event of Default has then occurred and is continuing;
(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 (x) first, in the case of the U.S. Borrower, prepay such Swingline Exposure and (y) second, Cash Collateralize, for the benefit of the applicable Issuing Bank, such Borrowers’ obligations corresponding to such Defaulting Lender’s LC Exposure under the applicable Class of Commitments (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.06(k2.06(j) for so long as such LC Exposure is outstanding;
(iii) if a Borrower Cash Collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, such Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is Cash Collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(b) shall be adjusted in accordance with such non-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 Lender hereunder, all letter of credit fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank until such LC Exposure is reallocated and/or Cash Collateralized; and
(d) so long as such Lender is a Defaulting Lender, the applicable Issuing Bank under the applicable Facility shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or Cash Collateral will be provided by the applicable Borrower(s) in accordance with Section 2.20(c), and participating interests in any such newly made Swingline Loan or newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to the Parent of any Lender shall occur following the Second Amendment Effective Date date hereof and for so long as such event shall continue or (ii) any Issuing Bank or the Swingline Lender has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, such Issuing Bank shall not be required to issue, amend or increase any Letter of Credit and the Swingline Lender shall not be required to fund any Swingline Loan, unless such Issuing Bank or the Swingline Lender, as the case may be, shall have entered into arrangements with the Borrowers or such Lender, satisfactory to such Issuing Bank or the Swingline Lender, as the case may be, to defease any risk in respect of such Lender hereunder. In the event that each of the Administrative Agent, the Borrowers, the applicable Issuing Banks and, in the case of the U.S. Facility, the Swingline Lender agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and/or LC Exposure of the Lenders under the applicable Facility shall be readjusted to reflect the inclusion of such Lender’s Commitment and on the date of such readjustment such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage.
Appears in 2 contracts
Sources: Credit Agreement (Levi Strauss & Co), Credit Agreement (Levi Strauss & Co)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) fees Such Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall cease to accrue on be restricted as set forth in the unfunded portion definition of the Commitments of such Defaulting Lender pursuant to Section 2.12(a)Required Lenders;
(b) such Defaulting Lender shall not have the right to vote on any issue on which voting is required (other than to the extent expressly provided in Section 9.02(b)) and the Commitment and Revolving Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or the Supermajority Revolving Lenders have taken or may take any action hereunder;
(c) if any Swingline Exposure or LC Letter of Credit Exposure exists at the time a Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Letter of Credit Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the nonLenders that are Non-Defaulting Lenders of the applicable Class in accordance with their respective Applicable RL Percentages (calculated without regard to any Defaulting Lender’s Revolving Loan Commitment) but only to the extent (x) the sum of all nonNon-Defaulting Lenders’ Individual Exposures plus (without duplication) such Defaulting Lender’s Letter of Credit Exposure does not exceed the aggregate amount of all Non-Defaulting Lenders’ Revolving Exposures under such Class of Commitments plus such Defaulting Lender’s Swingline Exposure and LC Exposure under such Class of Commitments does not exceed the total of all non-Defaulting Lenders’ Commitments of such ClassLoan Commitments, (y) no nonimmediately following the reallocation to a Non-Defaulting Lender’s Revolving , the Individual Exposure under such Class of Commitments is increased above such Lender’s Commitment of such Class as a result thereof Non-Defaulting Lender does not exceed its Revolving Loan Commitment at such time and (z) no Event of Default has then occurred and is continuingthe conditions set forth in Article VII are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the applicable Borrower Agent shall within one five (5) Business Day Days following written notice by the Administrative Agent (x) first, in the case enter into a Letter of the U.S. Borrower, prepay such Swingline Exposure and (y) second, Cash Collateralize, for the benefit of the applicable Issuing Bank, such Borrowers’ obligations corresponding to such Defaulting Lender’s LC Exposure under the applicable Class of Commitments (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.06(k) for so long as such LC Exposure is outstandingCredit Back-Stop Arrangement;
(iii) if a Borrower Cash Collateralizes any portion of such Defaulting Lender’s LC Letter of Credit Exposure is cash collateralized pursuant to clause (ii) above, such the Borrower Agent shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.12(b4.01(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is Cash CollateralizedLetter of Credit Exposure;
(iv) if the LC Letter of Credit Exposure of the nonNon-Defaulting Lenders is reallocated pursuant to clause (i) aboveSection 2.14(b)(i), then the fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(bSection 4.01(b) shall be adjusted in accordance with such nonNon-Defaulting Lenders’ Applicable Percentages; andRL Percentages (calculated without regard to any Defaulting Lender’s Revolving Loan Commitment) and the Defaulting Lender shall not be entitled to any Letter of Credit Fee;
(v) if all or any portion of such Defaulting Lender’s LC Letter of Credit Exposure is neither cash collateralized nor reallocated nor Cash Collateralized pursuant to clause (i) or (ii) aboveSection 2.14(b)(i), then, without prejudice to any rights or remedies of any Issuing Bank Lender or any Lender hereunder, all letter of credit fees payable under Section 2.12(b4.01(b) with respect to such Defaulting Lender’s LC Letter of Credit Exposure shall be payable to the applicable each Issuing Bank Lender until such LC Letter of Credit Exposure is reallocated cash collateralized and/or Cash Collateralized; andreallocated;
(dc) Notwithstanding anything to the contrary contained in Article III, so long as such any Lender is a Defaulting Lender, the applicable Issuing Bank under the applicable Facility shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or Cash Collateral will be provided by the applicable Borrower(s) in accordance with Section 2.20(c), and Lender participating interests in any such newly made Swingline Loan or newly issued or increased Letter of Credit shall be allocated among nonLenders that are Non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i2.14(b)(i) (and such Defaulting Lender Lenders shall not participate therein). If .
(d) Notwithstanding anything to the contrary contained herein, 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 13.02) may, in lieu of being distributed to such Defaulting Lender, be retained by the Administrative Agent in a segregated non-interest bearing account and, subject to any requirements of applicable law, be applied at such time or times as may be determined by the Administrative Agent (i) a Bankruptcy Event with respect first, to the Parent payment of any amounts owing by such Defaulting Lender shall occur following to the Second Amendment Effective Date and for so long as such event shall continue or Administrative Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to the Issuing Bank Lenders hereunder, (iii) third, to the funding of any Loan or the Swingline Lender has a good faith belief that funding or cash collateralization of any Lender has defaulted participation in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, such Issuing Bank shall not be required to issue, amend or increase any Letter of Credit and the Swingline Lender shall not be required to fund any Swingline Loan, unless such Issuing Bank or the Swingline Lender, as the case may be, shall have entered into arrangements with the Borrowers or such Lender, satisfactory to such Issuing Bank or the Swingline Lender, as the case may be, to defease any risk in respect of which such Defaulting Lender hereunderhas failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (iv) fourth, if so determined by the Administrative Agent, 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 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 Defaulting Lender’s breach of its obligations under this Agreement, (vi) sixth, so long as no Default or Event of Default has occurred and is continuing, to the payment of any amounts owing to the Borrower Agent as a result of any judgment of a court of competent jurisdiction obtained by the Borrower Agent against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, and (vii) seventh, 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 repayments of Unpaid Drawings in respect of which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Article VII are satisfied or waived, 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 Unpaid Drawings owed to, any 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 clause (d) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
(e) In the event that each of the Administrative Agent, the Borrowers, the applicable Borrower Agent and each Issuing Banks and, Lender agree in the case of the U.S. Facility, the Swingline Lender agrees writing that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then (i) the Swingline Exposure and/or LC Letter of Credit Exposure of the Lenders under the applicable Facility shall be readjusted to reflect the inclusion of such Lender▇▇▇▇▇▇’s Commitment Revolving Loan Commitments and on the such date of such readjustment such Lender shall purchase at par such of the Revolving Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Revolving Loans in accordance with its Applicable PercentageRL Percentage and (ii) so long as no Event of Default then exists, all funds held as cash collateral pursuant to the Letter of Credit Back-Stop Arrangements shall thereafter be promptly returned to the Borrower Agent; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower Agent while that ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇’s having been a Defaulting Lender. If the Revolving Loan Commitments have been terminated, all other Obligations (other than contingent obligations not due and owing) with respect to the Revolving Loans have been paid in full in cash and no Letters of Credit are outstanding (other than cash collateralized or backstopped Letters of Credit in a manner reasonably satisfactory to each applicable Issuing Lender), then, so long as no Event of Default then exists, all funds held as cash collateral pursuant to the Letter of Credit Back-Stop Arrangements shall thereafter be promptly returned to the Borrower Agent.
Appears in 2 contracts
Sources: Abl Credit Agreement (Pyxus International, Inc.), Abl Credit Agreement (Pyxus International, Inc.)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) fees the Commitment Fee shall cease to accrue on the unfunded portion of the Commitments Commitment of such Lender so long as it is a Defaulting Lender (except to the extent it is payable to each Issuing Bank pursuant to Section 2.12(aclause (b)(v) below);
(b) such Defaulting Lender shall not have the right to vote on any issue on which voting is required (other than to the extent expressly provided in Section 9.02(b)) and the Commitment and Revolving Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or the Supermajority Revolving Lenders have taken or may take any action hereunder;
(c) if any Swingline Exposure or LC Exposure exists at the time a Lender becomes a Defaulting Lender then:
(i) all or any part of the such Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders of the applicable Class in accordance with their respective Applicable Pro Rata Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Exposures under such Class of Commitments plus such Defaulting Lender’s Swingline Exposure and LC Exposure under such Class of Commitments does not exceed the total of all non-Defaulting Lenders’ Commitments of such Class, (y) no non-Defaulting Lender’s Revolving Exposure under such Class of Commitments is increased above such Lender’s Commitment of such Class as a result thereof and (z) no Event of Default has then occurred and is continuingCommitments;
(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 (x) first, in the case of the U.S. Borrower, prepay such Defaulting Lender’s Swingline Exposure and (y) second, Cash Collateralize, for the benefit of the applicable Issuing Bank, such Borrowers’ obligations corresponding to cash collateralize such Defaulting Lender’s LC Exposure under the applicable Class of Commitments (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.06(k2.18(j) for so long as such LC Exposure is outstanding;
(iii) if a Borrower Cash Collateralizes any portion of such Defaulting Lender’s LC Exposure is cash collateralized pursuant to clause (ii) above, such the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.12(b) the LC Participation Fee with respect to such portion of such Defaulting Lender’s LC Exposure during the period so long as it is cash collateralized;
(iv) if any portion of such Defaulting Lender’s LC Exposure is Cash Collateralized;
(iv) if the LC Exposure of reallocated to the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable LC Participation Fee with respect to the Lenders pursuant to Sections 2.12(a) and 2.12(b) such portion shall be adjusted allocated among the non-Defaulting Lenders in accordance with such non-Defaulting Lenders’ Applicable their Pro Rata Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither cash collateralized nor reallocated nor Cash Collateralized pursuant to clause (i) or (ii) abovethis Section 2.19(b), then, without prejudice to any rights or remedies of any Issuing Bank or any Lender hereunder, all letter the Commitment Fee that otherwise would have been payable to such Defaulting Lender (with respect to the portion of credit fees such Defaulting Lender’s Revolving Commitment that was utilized by such LC Exposure) and the LC Participation Fee payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank Banks, pro rata, until such LC Exposure is reallocated cash collateralized and/or Cash Collateralized; andreallocated;
(dc) so long as such any Lender is a Defaulting Lender, the applicable Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Bank under the applicable Facility Banks shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Revolving Commitments of the non-Defaulting Lenders and/or Cash Collateral will be provided by the applicable Borrower(s) cash collateralized in accordance with Section 2.20(c2.19(b), and participating interests participations in any such newly made Swingline Loan or newly issued or increased Letter of Credit or newly made Swingline Loan shall be allocated among non-Defaulting Lenders in a manner consistent accordance with Section 2.20(c)(i) their respective Pro Rata Percentages (and such Defaulting Lender Lenders shall not participate therein). If ; and
(d) 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(d) but excluding Section 2.16(b)) may, in lieu of being distributed to such Defaulting Lender, be retained by the 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 (i) a Bankruptcy Event with respect first, to the Parent payment of any amounts owing by such Defaulting Lender shall occur following to the Second Amendment Effective Date and for so long as such event shall continue or Administrative Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to the Issuing Bank Banks or Swingline Lender hereunder, (iii) third, to the funding of any Loan or the funding or cash collateralization of any participation in any Swingline Loan or 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 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, pro rata, to the payment of any amounts owing to the Borrower or the Lenders as a good faith belief that result of any judgment of a court of competent jurisdiction obtained by the Borrower or any Lender has defaulted in fulfilling against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under one this Agreement and (vi) sixth, to such Defaulting Lender or more other agreements as otherwise directed by a court of competent jurisdiction; provided, that if such payment is (x) a prepayment of the principal amount of any Loans or Reimbursement Obligations in respect of LC Disbursements as to which such a Defaulting Lender commits to extend credithas funded its participation obligations and (y) made at a time when the conditions set forth in Section 4.02 are satisfied, such Issuing Bank payment shall not be required applied solely to issueprepay the Loans of, amend and Reimbursement Obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or increase Reimbursement Obligations owed to, any Letter of Credit and Defaulting Lender. In the Swingline Lender shall not be required to fund event that the Administrative Agent, the Borrower, any Swingline Loan, unless such Issuing Bank or the Swingline Lender, as the case may be, shall have entered into arrangements with the Borrowers or such Lender, satisfactory to such Issuing Bank or the Swingline Lender, as the case may be, to defease any risk in respect of such Lender hereunder. In the event that each of the Administrative Agent, the Borrowers, the applicable Issuing Banks and, in the case of the U.S. Facility, the Swingline Lender agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and/or and LC Exposure of the Lenders under the applicable Facility shall be readjusted to reflect the inclusion of such Lender’s Commitment and on the such date of such readjustment such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Pro Rata Percentage. The rights and remedies against a Defaulting Lender under this Section 2.19 are in addition to other rights and remedies that the Borrower, the Administrative Agent, any Issuing Bank, the Swingline Lender and the non-Defaulting Lenders may have against such Defaulting Lender. The arrangements permitted or required by this Section 2.19 shall be permitted under this Agreement, notwithstanding any limitation on Liens or the pro rata sharing provisions or otherwise.
Appears in 2 contracts
Sources: Revolving Credit and Guaranty Agreement (Philadelphia Energy Solutions Inc.), Revolving Credit and Guaranty Agreement (Philadelphia Energy Solutions Inc.)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) fees Commitment Fees shall cease to accrue on the unfunded portion of the Commitments Commitment of such Defaulting Lender pursuant to Section 2.12(a2.07(a);
(b) such Defaulting Lender shall not have the right to vote on any issue on which voting is required (other than to the extent expressly provided in Section 9.02(b)) and the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required all Lenders or the Supermajority Revolving Required Lenders have taken or may take any action hereunderhereunder (including any consent to any amendment, waiver or other modification pursuant to Section 9.08); provided that (i) such Defaulting Lender’s Commitment may not be increased or extended without its consent and (ii) the principal amount of, or interest or fees payable on, Loans may not be reduced or excused and the scheduled date of payment may not be postponed as to such Defaulting Lender without such Defaulting Lender’s consent;
(c) if any Swingline Exposure or LC Exposure exists at the time a such Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders of the applicable Class in accordance with their respective Applicable Pro Rata Percentages but only to the extent (x) that the sum aggregate amount of all non-Defaulting Lenders’ Revolving Exposures under such Class of Commitments plus such Defaulting Lender’s Swingline Exposure and LC Exposure under such Class of Commitments does not exceed the total of all non-Defaulting Lenders’ Commitments of such Class, (y) no each non-Defaulting Lender’s Revolving Credit Exposure under such Class of Commitments is increased above such Lender’s Commitment of such Class as a result thereof and (z) no Event of Default has then occurred and is continuing;does not exceed its Commitment; and
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the applicable Borrower shall within one three Business Day Days following notice by the Administrative Agent (x) first, in the case of the U.S. Borrower, prepay such Swingline Exposure and (y) second, Cash Collateralize, for the benefit of the applicable Issuing Bank, such Borrowers’ obligations corresponding to such Defaulting Lender’s LC Exposure under the applicable Class of Commitments (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.06(k) for so long as such LC Exposure is outstanding;
(iii) if a Borrower Cash Collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, such Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is Cash Collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(b) shall be adjusted in accordance with such non-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 Lender hereunder, all letter of credit fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank until such LC Exposure is reallocated and/or Cash CollateralizedExposure; and
(d) so long as such Lender is a Defaulting Lender, the applicable Issuing Bank under the applicable Facility Swingline Lender shall not be required to issue, amend or increase fund any Letter of Credit, Swingline Loan unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or Cash Collateral will be provided by the applicable Borrower(s) in accordance with Section 2.20(c)Lenders, and participating interests in any such newly made Swingline Loan or newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to the Parent of any Lender shall occur following the Second Amendment Effective Date and for so long as such event shall continue or (ii) any Issuing Bank or the Swingline Lender has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, such Issuing Bank shall not be required to issue, amend or increase any Letter of Credit and the Swingline Lender shall not be required to fund any Swingline Loan, Loan unless such Issuing Bank or the Swingline Lender, as the case may be, Lender shall have entered into arrangements with the Borrowers Borrower or such Lender, satisfactory to such Issuing Bank or the Swingline Lender, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that each of the Administrative Agent, the Borrowers, the applicable Issuing Banks and, in the case of the U.S. Facility, Borrower and the Swingline Lender each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and/or LC Exposure of the Lenders under the applicable Facility shall be readjusted to reflect the inclusion of such Lender’s Commitment and on the such date of such readjustment such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Revolving Loans in accordance with its Applicable Pro Rata Percentage.
Appears in 2 contracts
Sources: Revolving Credit Facility Agreement (Janus Capital Group Inc), Revolving Credit Facility Agreement (Janus Capital Group Inc)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) fees shall cease to accrue on the unfunded portion of the Commitments of such Defaulting Lender pursuant to Section 2.12(a);
(b) such Defaulting Lender shall not have the right to vote on any issue on which voting is required (other than to the extent expressly provided in Section 9.02(b)) and the Commitment and Revolving Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or the Supermajority Revolving Lenders have taken or may take any action hereunder;
(c) if any Swingline Exposure or LC Exposure exists at the time 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 of the applicable Class in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Exposures under such Class of Commitments plus such Defaulting Lender’s Swingline Exposure and LC Exposure under such Class of Commitments does not exceed the total of all non-Defaulting Lenders’ Commitments of such Class, (y) no non-Defaulting Lender’s Revolving Exposure under such Class of Commitments is increased above such Lender’s Commitment of such Class as a result thereof and (z) no Event of Default has then occurred and is continuing;
(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 (x) first, in the case of the U.S. Borrower, prepay such Swingline Exposure and (y) second, Cash Collateralize, for the benefit of the applicable Issuing Bank, such Borrowers’ obligations corresponding to such Defaulting Lender’s LC Exposure under the applicable Class of Commitments (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.06(k) for so long as such LC Exposure is outstanding;
(iii) if a Borrower Cash Collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, such Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is Cash Collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(b) shall be adjusted in accordance with such non-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 Lender hereunder, all letter of credit fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank until such LC Exposure is reallocated and/or Cash Collateralized; and
(d) so long as such Lender is a Defaulting Lender, the applicable Issuing Bank under the applicable Facility shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or Cash Collateral will be provided by the applicable Borrower(s) in accordance with Section 2.20(c), and participating interests in any such newly made Swingline Loan or newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to the Parent of any Lender shall occur following the Second Amendment and Restatement Effective Date and for so long as such event shall continue or (ii) any Issuing Bank or the Swingline Lender has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, such Issuing Bank shall not be required to issue, amend or increase any Letter of Credit and the Swingline Lender shall not be required to fund any Swingline Loan, unless such Issuing Bank or the Swingline Lender, as the case may be, shall have entered into arrangements with the Borrowers or such Lender, satisfactory to such Issuing Bank or the Swingline Lender, as the case may be, to defease any risk in respect of such Lender hereunder. In the event that each of the Administrative Agent, the Borrowers, the applicable Issuing Banks and, in the case of the U.S. Facility, the Swingline Lender agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and/or LC Exposure of the Lenders under the applicable Facility shall be readjusted to reflect the inclusion of such Lender’s Commitment and on the date of such readjustment such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage.
Appears in 2 contracts
Sources: Credit Agreement (Levi Strauss & Co), Credit Agreement (Levi Strauss & Co)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) fees shall cease to accrue on the unfunded portion of the Commitments Commitment of such Defaulting Lender pursuant to Section 2.12(a2.10(a);
(b) such Defaulting Lender shall not have the right to vote on any issue on which voting is required (other than to the extent expressly provided in Section 9.02(b)) and the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or the Supermajority Revolving Lenders have taken or may take any action hereunderhereunder (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender affected thereby;
(c) if any Swingline Exposure or LC Exposure exists at the time a such Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders of the applicable Class in accordance with their respective Applicable Percentages but only to the extent that (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures under such Class of Commitments plus such Defaulting Lender’s Swingline Exposure and LC Exposure under such Class of Commitments does not exceed the total of all non-Defaulting Lenders’ Commitments of such Class, Commitments; (y) no the conditions set forth in Section 4.02 are satisfied at such time; and (z) the sum of each non-Defaulting Lender’s Revolving Credit Exposure under plus its reallocated share of such Class of Commitments is increased above such Defaulting Lender’s Commitment of LC Exposure does not exceed such Class as a result thereof and (z) no Event of Default has then occurred and is continuing;non-Defaulting Lender’s Commitment; 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 (x) first, in the case of the U.S. Borrower, prepay such Swingline Exposure and (y) second, Cash Collateralize, cash collateralize for the benefit of the applicable Issuing Bank, such Borrowers’ Bank only the Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure under the applicable Class of Commitments (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.06(k2.04(j) for so long as such LC Exposure is outstanding;
(iii) if a the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) aboveSection 2.18(c)(ii), such the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.12(b2.10(b)(i) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is Cash Collateralizedcash collateralized;
(iv) if the LC Exposure of the non-Defaulting 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 in accordance with such non-Defaulting Lenders’ Applicable Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor Cash Collateralized cash collateralized pursuant to clause (iSection 2.18(c)(i) or (ii) above, then, without prejudice to any rights or remedies of any the Issuing Bank or any Lender hereunder, all facility fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.12(b2.10(b)(i) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank until and to the extent that such LC Exposure is reallocated and/or Cash Collateralizedcash collateralized; and
(d) so long as such Lender is a Defaulting Lender, the applicable Issuing Bank under the applicable Facility shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or Cash Collateral cash collateral will be provided by the applicable Borrower(s) Borrower in accordance with Section 2.20(c2.18(c), and participating interests in any such newly made Swingline Loan or newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i2.18(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to the a Lender Parent of any Lender shall occur following the Second Amendment Effective Date date hereof and for so long as such event shall continue or (ii) any the Issuing Bank or the Swingline Lender has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, such the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit and the Swingline Lender shall not be required to fund any Swingline LoanCredit, unless such the Issuing Bank or the Swingline Lender, as the case may be, shall have entered into arrangements with the Borrowers Borrower or such Lender, satisfactory to such the Issuing Bank or the Swingline Lender, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that each of the Administrative Agent, the Borrowers, Borrower and the applicable Issuing Banks and, in the case of the U.S. Facility, the Swingline Lender Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and/or LC Exposure of the Lenders under the applicable Facility shall be readjusted to reflect the inclusion of such Lender’s Commitment and on the such date of such readjustment such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage.
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 Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) fees shall cease to accrue on the unfunded portion of the Commitments Commitment of such Defaulting Lender pursuant to Section 2.12(a2.8(a);
(b) such Defaulting Lender shall not have the right to vote on any issue on which voting is required (other than to the extent expressly provided in Section 9.02(b)) and the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or the Supermajority Revolving Lenders have taken or may take any action hereunderhereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.1); provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender affected thereby;
(c) if any Swingline Exposure or LC Exposure L/C Obligation exists at the time a such Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure L/C Obligation of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders of the applicable Class in accordance with their respective Applicable Revolving Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures under such Class of Commitments plus such Defaulting Lender’s Swingline Exposure and LC Exposure under such Class of Commitments L/C Obligation does not exceed the total of all non-Defaulting Lenders’ Commitments of such Class, (y) no non-Defaulting Lender’s Revolving Exposure under such Class of Commitments is increased above such Lender’s Commitment of such Class as a result thereof and (z) no Event of Default has then occurred and is continuingCommitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the applicable Borrower shall within one three Business Day Days following notice by the Administrative Agent (x) firstAgent, in the case of the U.S. Borrower, prepay such Swingline Exposure and (y) second, Cash Collateralize, cash collateralize for the benefit of the applicable Issuing Bank, such Borrowers’ Lender only the Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure under the applicable Class of Commitments L/C Obligation (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.06(k) 8 for so long as such LC Exposure L/C Obligation is outstanding;
(iii) if a the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s LC Exposure L/C Obligation pursuant to clause (ii) aboveSection 2.23(c), such the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.12(b3.3(a) with respect to such Defaulting Lender’s LC Exposure L/C Obligation during the period such Defaulting Lender’s LC Exposure L/C Obligation is Cash Collateralizedcash collateralized;
(iv) if the LC Exposure L/C Obligation of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(aSection 2.8(a) and 2.12(bSection 3.3(a) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Revolving Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure L/C Obligation is neither reallocated nor Cash Collateralized cash collateralized pursuant to clause (i) or (ii) aboveSection 2.23, then, without prejudice to any rights or remedies of any the Issuing Bank Lender or any other Lender hereunder, all facility fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such L/C Obligation) and letter of credit fees payable under Section 2.12(b3.3(a) with respect to such Defaulting Lender’s LC Exposure L/C Obligation shall be payable to the applicable Issuing Bank Lender until and to the extent that such LC Exposure L/C Obligation is reallocated and/or Cash Collateralizedcash collateralized; and
(d) so long as such Lender is a Defaulting Lender, the applicable Issuing Bank under the applicable Facility Lender shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding L/C Obligation will be 100% covered by the Commitments of the non-Defaulting Lenders Lenders, including obligations to participate in Letters of Credit, and/or Cash Collateral cash collateral will be provided by the applicable Borrower(s) Borrower in accordance with Section 2.20(c2.23(c), and participating interests in any such newly made Swingline Loan or newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i2.23(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to the Parent of any Lender shall occur following the Second Amendment Effective Date and for so long as such event shall continue or (ii) any Issuing Bank or the Swingline Lender has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, such Issuing Bank shall not be required to issue, amend or increase any Letter of Credit and the Swingline Lender shall not be required to fund any Swingline Loan, unless such Issuing Bank or the Swingline Lender, as the case may be, shall have entered into arrangements with the Borrowers or such Lender, satisfactory to such Issuing Bank or the Swingline Lender, as the case may be, to defease any risk in respect of such Lender hereunder. In the event that each of the Administrative Agent, the Borrowers, Borrower and the applicable Issuing Banks and, in the case of the U.S. Facility, the Swingline Lender each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and/or LC Exposure L/C Obligation of the Lenders under the applicable Facility shall be readjusted to reflect the inclusion of such Lender’s Commitment and on the such date of such readjustment such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Revolving Percentage. If any portion of a Defaulting Lender’s L/C Obligations are reallocated to Lenders that are not Defaulting Lenders pursuant to this Section 2.23, then defined terms (including Revolving Percentage), shall, as necessary or advisable (in the reasonable determination of the Administrative Agent) be read as used in this Agreement (other than Section 9.7) to give effect to such reallocation.
Appears in 2 contracts
Sources: Credit Agreement (WEB.COM Group, Inc.), Credit Agreement (WEB.COM Group, Inc.)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) except to the extent provided to the contrary in paragraph (iv) of Section 2.20(c) below, facility fees shall cease to accrue on the unfunded portion of the Commitments of such Defaulting Lender pursuant to Section 2.12(a)) on the unused amount of the Commitment of such Defaulting Lender;
(b) such Defaulting Lender shall not have the right to vote on any issue on which voting is required (other than to the extent expressly provided in Section 9.02(b)) and the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or the Supermajority Revolving any other requisite Lenders have taken or may take any action hereunderhereunder 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 a such Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the nonNon-Defaulting Lenders of the applicable Class in accordance with their respective Applicable Percentages but only to the extent (x) that the sum of all nonNon-Defaulting Lenders’ Revolving Credit Exposures under such Class of Commitments plus such Defaulting Lender’s Swingline Exposure and LC Exposure under such Class of Commitments does not exceed the total sum of all nonNon-Defaulting Lenders’ Commitments of such Class, (y) no non-Defaulting Lender’s Revolving Exposure under such Class of Commitments is increased above such Lender’s Commitment of such Class as a result thereof and (z) no Event of Default has then occurred and is continuingCredit Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the applicable Borrower shall shall, within one two Business Day Days following notice by the Administrative Agent (x) firstAgent, in the case of the U.S. Borrower, prepay such Swingline Exposure and (y) second, Cash Collateralize, cash collateralize for the benefit of the applicable Issuing Bank, such Borrowers’ obligations corresponding to Banks the portion of such Defaulting Lender’s LC Exposure under the applicable Class of Commitments (after giving effect to any partial reallocation pursuant to clause (i) above) that has not been reallocated in accordance with the procedures set forth in Section 2.06(k2.06(i) for so long as such LC Exposure is outstanding;
(iii) if a the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, such the Borrower shall not be required to pay any participation fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such portion of such Defaulting Lender’s LC Exposure during the period for so long as such Defaulting Lender’s LC Exposure is Cash Collateralizedcash collateralized;
(iv) if any portion of the LC Exposure of the non-such Defaulting Lenders Lender is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(b) shall be adjusted in accordance with to give effect to such non-Defaulting Lenders’ Applicable Percentagesreallocation; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor Cash Collateralized cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all letter facility fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of credit such Defaulting Lender’s Commitment utilized by such LC Exposure) and participation fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or Cash Collateralizedcash collateralized; and
(d) so long as such Lender is a Defaulting Lender, the applicable no Issuing Bank under the applicable Facility shall not be required to issue, amend amend, renew or increase extend any Letter of Credit, unless in each case it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% fully covered by the Commitments of the nonNon-Defaulting Lenders and/or Cash Collateral will be cash collateral provided by the applicable Borrower(s) Borrower in accordance with Section 2.20(c), and participating interests in any such newly made Swingline Loan issued, amended, renewed or newly issued or increased extended Letter of Credit shall will be allocated among nonthe Non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein). If In the event that (ix) a Bankruptcy Event with respect to the a Lender Parent of any Lender shall occur have occurred following the Second Amendment Effective Date and for so long as such event Bankruptcy Event shall continue or (iiy) any Issuing Bank or the Swingline Lender has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, such no Issuing Bank shall not be required to issue, amend amend, renew or increase extend any Letter of Credit and the Swingline Lender shall not be required to fund any Swingline LoanCredit, unless such Issuing Bank or the Swingline Lender, as the case may be, shall have entered into arrangements with the Borrowers Borrower or such Lender, Lender satisfactory to such Issuing Bank or the Swingline Lender, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that each of the Administrative Agent, the Borrowers, the applicable Borrower and each Issuing Banks and, in the case of the U.S. Facility, the Swingline Lender agrees Bank each agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and/or LC Exposure of the Lenders under the applicable Facility shall be readjusted to reflect the inclusion of such Lender’s Commitment and on the such date of such readjustment such Lender shall purchase at par such of the Revolving Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage. Subject to Section 9.16, no reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender 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.
Appears in 2 contracts
Sources: Credit Agreement (NEWMONT Corp /DE/), Credit Agreement (Newmont Mining Corp /De/)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as until such Lender is ceases to be a Defaulting Lender:Lender pursuant to Section 2.20(e):
(a) commitment fees shall cease to accrue on the unfunded unused portion of the Commitments Commitment of such Defaulting Lender pursuant to Section 2.12(a), and participation fees shall cease to accrue on the LC Exposure of such Defaulting Lender to the extent it is cash collateralized pursuant to Section 2.20(c);
(b) such Defaulting Lender shall not have the right to vote on any issue on which voting is required (other than to the extent expressly provided in Section 9.02(b)) Commitments, Revolving Credit Exposure and the Commitment and Revolving Exposure Term Loans of such Defaulting Lender shall not be included in determining whether the Required Lenders or the Supermajority Revolving Lenders have taken or may take any action hereunder;
(c) if any Swingline Exposure or LC Exposure exists at the time a Lender becomes a Defaulting Lender then:
(i) all or any part of the such Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the non-Lenders with Revolving Commitments that are not Defaulting Lenders of the applicable Class ratably in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Exposures under such Class of Commitments Credit Exposure plus such Defaulting Lender’s Swingline Exposure and LC Exposure under such Class of Commitments does not exceed the total of all non-Defaulting Lenders’ Commitments of such ClassRevolving Commitments, (y) no the sum of any non-Defaulting Lender’s Revolving Exposure under Credit Exposures plus such Class of Commitments is increased above such non-Defaulting Lender’s Applicable Revolving Commitment Percentage of the Defaulting Lender’s LC Exposure and Defaulting Lender’s Swingline Exposure does not exceed such Class as a result thereof non-Defaulting Lender’s Revolving Commitment and (z) no Event of Default has then occurred and is continuingthe conditions set forth in Section 4.03 are satisfied at such time; 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, without prejudice to any rights or remedies of the Borrower against such Defaulting Lender, (x) first, in the case of the U.S. Borrower, prepay such Swingline Exposure and (y) second, Cash Collateralize, cash collateralize for the benefit of the applicable Issuing Bank, such Borrowers’ Banks only the Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure under the applicable Class of Commitments (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.06(k2.06(j) for so long as such LC Exposure is outstanding;
(iii) if a the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause this paragraph (ii) abovec), such the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such Defaulting Lender’s cash collateralized LC Exposure during the period such Defaulting Lender’s LC Exposure is Cash Collateralizedcash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause this paragraph (i) abovec), then the fees payable to the Lenders with Revolving Commitments pursuant to Sections Section 2.12(a) and Section 2.12(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; andor
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither cash collateralized nor reallocated nor Cash Collateralized pursuant to clause this paragraph (i) or (ii) abovec), then, without prejudice to any rights or remedies of any the applicable Issuing Bank 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 Revolving 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 applicable Issuing Bank until such LC Exposure is reallocated cash collateralized and/or Cash Collateralizedreallocated; and
(d) so long as such a Swingline Lender is a Defaulting Lender, the applicable shall not be required to fund any Swingline Loan and an Issuing Bank under the applicable Facility shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Revolving Commitments of the non-Defaulting Lenders and/or Cash Collateral cash collateral will be provided by the applicable Borrower(s) Borrower in accordance with Section 2.20(c), and participating interests in any such newly made Swingline Loan or newly issued or increased Letter of Credit or newly made Swingline Loan shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender Lenders shall not participate therein). If (i) a Bankruptcy Event with respect to the a Parent of any Lender shall occur following the Second Amendment Effective Date date hereof and for so long as such event shall continue or (ii) the Swingline Lender or any Issuing Bank or the Swingline Lender has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, such the Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Bank Banks shall not be required to issue, amend or increase any Letter of Credit and Credit, unless the Swingline Lender shall not be required to fund any Swingline Loan, unless such Issuing Bank or the Swingline Lenderapplicable Issuing Bank, as the case may be, shall have entered into arrangements with the Borrowers Borrower or such Lender, satisfactory to the Swingline Lender or such Issuing Bank or the Swingline LenderBank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In .
(e) in the event and on the date that each of the Administrative Agent, the BorrowersBorrower, the applicable each Issuing Banks and, in the case of the U.S. Facility, the Bank and Swingline Lender agrees shall agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and/or and LC Exposure of the other Lenders under the applicable Facility shall be readjusted to reflect the inclusion of such Lender’s Revolving Commitment and on the such date of such readjustment such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) and unreimbursed LC Disbursements of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Revolving Loans in accordance with its Applicable Percentage; provided that no adjustments will be made retroactively with respect to commitment fees and participation fees accrued or payments made by or on behalf of the Borrower while such Lender was a Defaulting Lender; and provided further that except to the extent otherwise expressly agreed by the Borrower and any other affected parties, no termination of a Lender’s status as a Defaulting Lender will constitute a waiver or release of any claim of the Borrower or other affected party hereunder arising from such Lender’s having been a Defaulting Lender.
(f) Nothing in this Section shall affect any rights or remedies the Borrower may have against any Defaulting Lender.
Appears in 2 contracts
Sources: Credit Agreement (Fortune Brands Home & Security, Inc.), Credit Agreement (Fortune Brands Home & Security LLC)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) fees set forth in Section 2.13(a) shall cease to accrue on the unfunded portion of the Commitments Commitment of such Defaulting Lender pursuant to Section 2.12(a)Lender;
(b) to the extent permitted by applicable law, (i) any voluntary prepayment of Revolving Credit Loans shall, if the Borrowers so direct at the time of making such voluntary prepayment, be applied to the Revolving Credit Loans of other Lenders as if such Defaulting Lender shall not have had no Revolving Credit Loans outstanding and the right to vote on Revolving Credit Exposure of such Defaulting Lender were zero, and (ii) any issue on which voting is required (other than mandatory prepayment of the Revolving Credit Loans shall, if the Borrowers so direct at the time of making such mandatory prepayment, be applied to the extent expressly provided in Section 9.02(bRevolving Credit Loans of other Lenders, but not to the Revolving Credit Loans of such Defaulting Lender, it being understood and agreed that the Borrowers shall be entitled to retain any portion of any mandatory prepayment of the Revolving Credit Loans that is not paid to such Defaulting Lender solely as a result of the operation of the provisions of this clause (b);
(c) and the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required all Lenders or the Supermajority Revolving Required Lenders have taken or may take any action hereunderhereunder (including any consent to any amendment or waiver pursuant to Section 10.02), provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lender;
(cd) if any Swingline Exposure or LC Exposure exists at the time a Lender becomes a Defaulting Lender then:
(i) all or any part of the such Swingline Exposure and LC Exposure (other than, in the case of a Defaulting Lender that is a Swingline Lender, the portion of such Defaulting Lender Swingline Exposure referred to in clause (b) of the definition of such term) shall be reallocated among the non-Lenders that are not Defaulting Lenders of the applicable Class in accordance with their respective Applicable Revolving Percentages but but, in any case, only to the extent (x) the sum of the Revolving Credit Exposures of all non-Lenders that are not Defaulting Lenders’ Revolving Exposures under such Class of Commitments Lenders plus such Defaulting Lender’s Swingline Exposure and LC Exposure under such Class of Commitments does not exceed the total of the Commitments of all non-Lenders that are not Defaulting Lenders’ Commitments of such Class, (y) no non-Defaulting Lenderthe Revolving Credit Exposure of any Lender does not exceed such ▇▇▇▇▇▇’s Revolving Exposure under such Class of Commitments is increased above such Lender’s Credit Commitment of such Class as a result thereof and (z) no Event of Default has then occurred and is continuing;the conditions set forth in Section 5.02 are satisfied at such time; and
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the applicable Borrower Borrowers shall within one Business Day following notice by the Administrative Agent (x) first, in the case of the U.S. Borrower, prepay such Swingline Exposure and (y) second, Cash Collateralize, for the benefit of the applicable Issuing Bank, such Borrowers’ obligations corresponding to cash collateralize such Defaulting Lender’s LC Exposure under the applicable Class of Commitments (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.06(k2.07(k) for so long as such LC Exposure is outstanding;
(iii) if a Borrower Cash Collateralizes the Borrowers cash collateralize any portion of such Defaulting Lender’s LC Exposure pursuant to clause this paragraph (ii) aboved), such Borrower the Borrowers shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.12(b2.13(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is Cash Collateralizedcash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause this paragraph (i) aboved), then the fees payable to the Lenders pursuant to Sections 2.12(aSection 2.13(a) and 2.12(bSection 2.13(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Revolving Percentages; andor
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither cash collateralized nor reallocated nor Cash Collateralized pursuant to clause this paragraph (i) or (ii) aboved), then, without prejudice to any rights or remedies of any the Issuing Bank Lenders or any Lender hereunder, all letter commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of credit such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and fees payable in connection with any Letters of Credit under Section 2.12(b2.13(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank Lenders until such LC Exposure is reallocated cash collateralized and/or Cash Collateralizedreallocated; and
(de) so long as such any Lender is a Defaulting Lender, the applicable no Swingline Lenders shall be required to fund any Swingline Loan and no Issuing Bank under the applicable Facility Lender shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or Cash Collateral cash collateral will be provided by the applicable Borrower(s) Borrowers in accordance with Section 2.20(c)paragraph (d) of this Section, and Swingline Exposure related to any newly made Swingline Loan or LC Exposure and participating interests in any such newly made Swingline Loan or newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with paragraph (d)(i) of this Section 2.20(c)(i) (and such Defaulting Lender Lenders shall not participate therein). If .
(if) a Bankruptcy Event with respect to the Parent of any Lender shall occur following the Second Amendment Effective Date and for so long as such event shall continue or (ii) any Issuing Bank or the Swingline Lender has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, such Issuing Bank shall not be required to issue, amend or increase any Letter of Credit and the Swingline Lender shall not be required to fund any Swingline Loan, unless such Issuing Bank or the Swingline Lender, as the case may be, shall have entered into arrangements with the Borrowers or such Lender, satisfactory to such Issuing Bank or the Swingline Lender, as the case may be, to defease any risk in respect of such Lender hereunder. In the event that each of the Administrative Agent, the Borrowers, Borrower and the applicable Issuing Banks and, in the case of the U.S. Facility, the Swingline Lender agrees Lenders agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and/or LC Exposure of the Lenders under the applicable Facility shall be readjusted to reflect the inclusion of such Lender▇▇▇▇▇▇’s Commitment and on the such date of such readjustment such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Revolving Percentage.
Appears in 2 contracts
Sources: Credit Agreement (Douglas Dynamics, Inc), Credit Agreement (Douglas Dynamics, Inc)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) fees Facility Fees shall cease to accrue on the unfunded portion of the Commitments Commitment of such Defaulting Lender pursuant to Section 2.12(a2.11(a);
(b) such Defaulting Lender shall not have the right to vote on any issue on which voting is required (other than to the extent expressly provided in Section 9.02(b)) and the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required all Lenders or the Supermajority Revolving Required Lenders have taken or may take any action hereunderhereunder (including any consent to any amendment or waiver pursuant to Section 8.7); provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lender; provided further that the Commitment of a Defaulting Lender may not be increased and the Availability Period as it applies to a Defaulting Lender may not be extended, in each case without the consent of such Defaulting Lender;
(c) if any Swingline Exposure or LC Exposure exists at the time a Lender becomes a Defaulting Lender then:
(i) all or any part of the such Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders of the applicable Class in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures under such Class of Commitments plus such Defaulting Lender’s Swingline Exposure and LC Exposure under such Class of Commitments does not exceed the total of all non-Defaulting Lenders’ Commitments of such ClassCommitments, (y) no nonsuch reallocation does not cause the aggregate Revolving Credit Exposure of any Non-Defaulting Lender to exceed such Non-Defaulting Lender’s Revolving Exposure under such Class of Commitments is increased above such Lender’s Commitment of such Class as a result thereof and (z) no Event the conditions set forth in paragraphs (a) and (b) of Default has then occurred and is continuing;Section 4.2 are satisfied at such time; and
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the applicable Borrower Borrowers shall within one Business Day following notice by the Administrative Agent (x) first, in the case of the U.S. Borrower, prepay such Swingline Exposure and (y) second, Cash Collateralize, cash collateralize for the benefit of the applicable Issuing Bank, such Borrowers’ Lender only the Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure under the applicable Class of Commitments (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.06(k) Article VI for so long as such LC Exposure is outstanding;
(iii) if a Borrower Cash Collateralizes the Borrowers cash collateralize any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) aboveSection 2.23(c)(ii), such Borrower the Borrowers shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.12(b2.11(c) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is Cash Collateralizedcash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) aboveSection 2.23(c)(i), then the fees payable to the Lenders pursuant to Sections 2.12(aSection 2.11(a) and 2.12(bSection 2.11(c) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; andor
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither cash collateralized nor reallocated nor Cash Collateralized pursuant to clause (i) or (ii) abovethe foregoing provisions of Section 2.23(c), then, without prejudice to any rights or remedies of any the Issuing Bank Lender or any Lender hereunder, all Facility Fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.12(b2.11(c) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank Lender until such LC Exposure is reallocated cash collateralized and/or Cash Collateralized; andreallocated;
(d) so long as such any Lender is a Defaulting Lender, the applicable Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Bank under the applicable Facility Lender shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or Cash Collateral cash collateral will be provided by the applicable Borrower(s) Borrower in accordance with Section 2.20(c2.23(c), and participating interests in any such newly made Swingline Loan or newly issued or increased Letter of Credit or newly made Swingline Loan shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i2.23(c)(i) (and such Defaulting Lender Lenders shall not participate therein); and
(e) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise, including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.17(c) but excluding Section 2.18) 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, pro rata, to the payment of any amounts owing by such Defaulting Lender to the Issuing Lender or Swingline Lender hereunder, (iii) third, if so determined by the Administrative Agent or requested by an Issuing Lender or Swingline Lender, held in such account as cash collateral for future funding obligations of the Defaulting Lender in respect of any existing or future participating interest in any Swingline Loan or Letter of Credit, (iv) fourth, if requested by the Company and with the approval of the Administrative Agent (such approval not to be unreasonably withheld or delayed), 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, (v) fifth, if requested by the Company and with the approval of the Administrative Agent (such approval not to be unreasonably withheld or delayed), 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 an Issuing Lender or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender or such Issuing Lender or Swingline Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, (vii) seventh, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by any Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, and (viii) eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction, provided that, with respect to this clause (viii), if such payment is (A) a prepayment of the principal amount of any Loans or reimbursement obligations in respect of LC Disbursements which a Defaulting Lender has funded its participation obligations and (B) made at a time when the conditions set forth in Section 4.2 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. If (i) a Bankruptcy Event with respect to the a Parent of any Lender shall occur following the Second Amendment Effective Date date hereof and for so long as such event shall continue or (ii) any Issuing Bank the Swingline Lender or the Swingline Issuing Lender has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, such the Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Bank Lender shall not be required to issue, amend or increase any Letter of Credit and Credit, unless the Swingline Lender shall not be required to fund any Swingline Loan, unless such Issuing Bank or the Swingline Issuing Lender, as the case may be, shall have entered into arrangements with the Borrowers Borrower or such Lender, satisfactory to such Issuing Bank the Swingline Lender or the Swingline Issuing Lender, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that each of the Administrative Agent, the BorrowersCompany, the applicable Issuing Banks and, in the case of the U.S. Facility, Lender and the Swingline Lender each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and/or and LC Exposure of the Lenders under the applicable Facility shall be readjusted to reflect the inclusion of such Lender’s Commitment and on the such date of such readjustment such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage.
Appears in 2 contracts
Sources: Five Year Revolving Credit Facility Agreement (Mead Johnson Nutrition Co), Revolving Credit Facility Agreement (Mead Johnson Nutrition Co)
Defaulting Lenders. Notwithstanding any provision of this Agreement any Loan Document to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded unused portion of the Commitments Commitment of such Defaulting Lender pursuant to Section 2.12(a2.11(a);
(b) such Defaulting Lender shall not have the right to vote on any issue on which voting is required (other than to the extent expressly provided in Section 9.02(b)) and the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or the Supermajority Revolving any other requisite Lenders have taken or may take any action hereunderhereunder 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 a such 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 nonNon-Defaulting Lenders of the applicable Class in accordance with their respective Applicable Percentages (for the purposes of such reallocation, such Defaulting Lender’s Commitment shall be disregarded in determining the Non-Defaulting Lenders’ respective Applicable Percentages), but only to the extent that (xA) the sum of all nonNon-Defaulting Lenders’ Revolving Credit Exposures under such Class of Commitments plus such Defaulting Lender’s Swingline Exposure (other than any portion thereof referred to in the parenthetical clause above) and LC Exposure under such Class of Commitments (other than any portion thereof referred to in the parenthetical clause above) does not exceed the total sum of all nonNon-Defaulting Lenders’ Commitments of and (B) after giving effect to any such Classreallocation, (y) no nonNon-Defaulting Lender’s Revolving Credit Exposure under shall exceed such Class of Commitments is increased above such Non-Defaulting Lender’s Commitment of such Class as a result thereof and (z) no Event of Default has then occurred and is continuingCommitment;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the applicable Borrower shall shall, within one three Business Day Days following the Borrower’s receipt of written notice by from the Administrative Agent Agent, (xA) first, prepay such Defaulting Lender’s Swingline Exposure (other than any portion thereof referred to in the case of the U.S. Borrower, prepay parenthetical in such Swingline Exposure clause (i)) that has not been reallocated and (yB) second, Cash Collateralize, cash collateralize in accordance with the procedures set forth in Section 2.05(k) for the benefit of the applicable Issuing Bank, such Borrowers’ Banks only the Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure under (other than any portion thereof referred to in the applicable Class of Commitments (after giving effect to any partial reallocation pursuant to parenthetical in such clause (i)) above) in accordance with the procedures set forth in Section 2.06(k) that has not been reallocated for so long as such LC Exposure is outstanding;
(iii) if a the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, such 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 during the period such portion of such Defaulting Lender’s LC Exposure is Cash Collateralizedcash collateralized;
(iv) if the any portion of such Defaulting Lender’s LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(aSection 2.11(a) and 2.12(bSection 2.11(b) shall be adjusted in accordance with to give effect to such non-Defaulting Lenders’ Applicable Percentagesreallocation; 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 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 Letter of credit 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 applicable Issuing Bank Banks, ratably based on the portion of such 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 Collateralizedcash collateralized pursuant to clause (i) or (ii) above; and
(d) so long as such Lender is a Defaulting Lender, the applicable Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Bank under the applicable Facility shall not be required to issue, amend or increase extend any Letter of Credit, in each 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 100% covered by the Commitments of the nonNon-Defaulting Lenders and/or Cash Collateral cash collateral will be provided by the applicable Borrower(s) Borrower in accordance with Section 2.20(c), and participating interests in any such newly made Swingline Loan or any newly issued issued, amended or increased extended Letter of Credit shall be allocated among nonNon-Defaulting Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein). If (i) In the event that a Bankruptcy Event with respect to the Parent of any Lender Parent shall occur have occurred following the Second Amendment Effective Closing Date and for so long as such event Bankruptcy Event shall continue or (ii) any Issuing Bank or the Swingline Lender has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend creditcontinue, such no Issuing Bank shall not be required to issue, amend amend, extend or increase any Letter of Credit Credit, and the Swingline Lender shall not be required to fund any Swingline Loan, unless such Issuing Bank or the Swingline Lender, as the case may be, Lender shall have entered into arrangements with the Borrowers Borrower or such Lender, the applicable Lender reasonably satisfactory to such Issuing Bank or the Swingline Lender, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that each of the Administrative Agent, the Borrowers, the applicable Issuing Banks and, in the case of the U.S. FacilityBorrower, the Swingline Lender and each Issuing Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and/or Exposures and LC Exposure Exposures of the Lenders under the applicable Facility shall be readjusted to reflect the inclusion of such Lender’s Commitment Commitment, and on the such date of such readjustment such Lender shall purchase at par such of the Revolving Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Revolving Loans in accordance with its Applicable 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 provisions of Section 9.02 and this Section during such period shall be binding on it). The rights and remedies against, and with respect to, a Defaulting Lender under this Section 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 Swingline Lender, the Borrower or any other Loan Party may at any time have against, or with respect to, such Defaulting Lender.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Marathon Petroleum Corp), Revolving Credit Agreement (MPLX Lp)
Defaulting Lenders. (a) Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lenderapply:
(ai) fees Facility Fees shall cease to accrue on the unfunded unused portion of the Commitments of such Defaulting Lender pursuant to Section 2.12(a);Lender’s Commitment.
(bii) such Defaulting Lender shall not have the right to vote on any issue on which voting is required (other than to the extent expressly provided in Section 9.02(b)) and the The Commitment and Revolving Outstanding Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or the Supermajority Revolving other requisite Lenders have taken or may take any action hereunder;hereunder (including any consent to any amendment or waiver pursuant to Section 8.2); provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender shall require the consent of such Defaulting Lender (in such case, to the extent such Defaulting Lender is an affected Lender).
(ciii) if any Swingline Exposure Unless a Default or LC Exposure exists at the time a 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 non-Defaulting Lenders of the applicable Class in accordance with their respective Applicable Percentages Pro Rata Shares of the Aggregate Commitment, but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Outstanding Credit Exposures under such Class of Commitments plus such Defaulting Lender’s Swingline Exposure and LC Exposure under such Class of Commitments does not exceed the total of all non-Defaulting Lenders’ Commitments Commitments.
(iv) If the LC Exposure of such ClassDefaulting Lender is reallocated pursuant to clause (iii) above, (y) no non-Defaulting Lender’s Revolving Exposure under then the LC Participation Fees payable to the Lenders pursuant to Section 2.6.2 shall be adjusted in accordance with such Class of Commitments is increased above such Lender’s Commitment of such Class as a result thereof and (z) no Event of Default has then occurred and is continuing;reallocation.
(iiv) if If (or to the extent that) the reallocation described in clause (iiii) above cannot, or can only partially, be effected, the applicable each Borrower shall shall, within one Business Day following notice by the Administrative Agent (x) firstand until and for so long as such condition shall exist), in the case of the U.S. Borrower, prepay such Swingline Exposure and (y) second, Cash Collateralize, cash collateralize for the benefit of the applicable Issuing Bank, Banks such Borrowers’ Borrower’s obligations corresponding to the portion of such Defaulting Lender’s non-reallocated LC Exposure under that is attributable to Letters of Credit issued for the applicable Class account of Commitments such Borrower (in each case, as determined after giving effect to any partial reallocation pursuant to clause (iiii) above) in accordance with the procedures set forth in Section 2.06(k2.4(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 If a Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (iiv) above, such Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.12(b) 2.6.2 with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is Cash Collateralized;cash collateralized.
(ivvii) if The Agent shall adjust the allocation of payments hereunder to ensure that a Defaulting Lender does not receive payment in respect of any Loan or LC Exposure Disbursement that it did not fund or to reflect any of the non-Defaulting Lenders is reallocated pursuant actions or adjustments referred to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; andthis Section 2.22.
(vb) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor Cash Collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any Lender hereunder, all letter of credit fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank until such LC Exposure is reallocated and/or Cash Collateralized; and
(d) so long as such Lender is a Defaulting Lender, the applicable Issuing Bank under the applicable Facility shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or Cash Collateral will be provided by the applicable Borrower(s) in accordance with Section 2.20(c), and participating interests in any such newly made Swingline Loan or newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to the Parent parent company of any Lender shall occur following the Second Amendment Effective Date date hereof and for so long as such event shall continue or (ii) any Issuing Bank or the Swingline Lender has shall have a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, such Issuing Bank shall not be required to issue, amend or increase any Letter of Credit and the Swingline Lender shall not be required to fund any Swingline LoanCredit, unless such Issuing Bank or the Swingline Lender, as the case may be, shall have entered into arrangements with the Borrowers applicable Borrower or such Lender, Lender reasonably satisfactory to such Issuing Bank or to mitigate the Swingline Lender, as the case may be, risk to defease any risk it in respect of such Lender hereunder. failing to satisfy its participating interest therein.
(c) In the event that each of the Administrative Agent, the Borrowers, the applicable each Borrower and each Issuing Banks and, in the case of the U.S. Facility, the Swingline Lender agrees Bank shall agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and/or LC Exposure of the Lenders under the applicable Facility shall be readjusted to reflect the inclusion of such Lender’s Commitment and on the such date of such readjustment such Lender shall purchase at par such of the Loans and participations in LC Disbursements of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable PercentagePro Rata Share, and all cash collateral then being held pursuant to Section 2.22(a)(v) above in connection with the LC 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, 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 that becomes a Defaulting Lender.
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 Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(ai) fees shall cease to accrue on the unfunded portion of the Commitments Revolving Credit Commitment of such Defaulting Lender pursuant to Section 2.12(a)2.3 [Facility Fees];
(bii) such Defaulting Lender shall not have the right to vote on any issue on which voting is required (other than to the extent expressly provided in Section 9.02(b)) and the Commitment and Revolving Exposure outstanding Loans of such Defaulting Lender shall not be included in determining whether the Required Lenders or the Supermajority Revolving Lenders have taken or may take any action hereunderhereunder (including any consent to any amendment, waiver or other modification pursuant to Section 11.1 [Modifications, Amendments or Waivers]); provided, that 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 such Lender or each Lender directly affected thereby;
(ciii) if any Swingline Exposure Swing Loans are outstanding or LC Exposure exists any Letter of Credit Obligations exist at the time a such 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 non-Defaulting Lenders of the applicable Class in accordance with their respective Applicable Percentages Ratable Shares but only to the extent that (x) the sum of all non-Defaulting Lenders’ Revolving Exposures under such Class of Commitments plus such Defaulting Lender’s Swingline Exposure and LC Exposure under such Class of Commitments Facility Usage does not exceed the total of all non-Defaulting Lenders’ Commitments of such ClassRevolving Credit Commitments, and (y) no non-Defaulting Lender’s Revolving Exposure under such Class of Commitments is increased above such Lender’s Commitment of such Class as a result thereof and (z) no Potential Default or Event of Default has then occurred and is continuingcontinuing at such time;
(iib) if the reallocation described in clause (ia) above cannot, or can only partially, be effected, the applicable Borrower shall within one Business Day following notice by the Administrative Agent (x) first, in the case of the U.S. Borrower, prepay such Swingline Exposure outstanding Swing Loans, and (y) second, Cash Collateralize, cash collateralize for the benefit of the applicable Issuing Bank, such Borrowers’ Lender the Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure under the applicable Class Letter of Commitments Credit Obligations (after giving effect to any partial reallocation pursuant to clause (ia) above) in accordance with a deposit account held at the procedures set forth in Section 2.06(k) Administrative Agent for so long as such LC Exposure is Letter of Credit Obligations are outstanding;
(iiic) if a the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s LC Exposure Letter of Credit Obligations pursuant to clause (iib) above, such the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.12(b) 2.9.2 [Letter of Credit Fees] with respect to such Defaulting Lender’s LC Exposure Letter of Credit Obligations during the period such Defaulting Lender’s LC Exposure is Cash CollateralizedLetter of Credit Obligations are cash collateralized;
(ivd) if the LC Exposure Letter of Credit Obligations of the non-Defaulting Lenders is 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 in accordance with such non-Defaulting Lenders’ Applicable PercentagesRatable 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 letter Letter of credit fees 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 applicable Issuing Bank Lender (and not to such Defaulting Lender) 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 Lender is a Defaulting Lender, PNC shall not be required to fund any Swing Loans and the applicable Issuing Bank under the applicable Facility Lender shall not be required to issue, amend or increase any Letter of Credit, unless it such Issuing Lender is satisfied that the related exposure and the Defaulting Lender’s then outstanding Letter of Credit Obligations will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Lenders and/or Cash Collateral cash collateral will be provided by the applicable Borrower(s) Borrower in accordance with clause (iii) of Section 2.20(c)2.10 [Defaulting Lenders], and participating interests in any such newly made Swingline Swing Loan or any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with clause (iii)(a) of Section 2.20(c)(i) 2.10 [Defaulting Lenders] (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to the Parent a parent company of any Lender shall occur following the Second Amendment Effective Date date hereof and for so long as such event shall continue continue, or (ii) any Issuing Bank PNC or the Swingline Issuing Lender has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, such PNC shall not be required to fund any Swing Loan and the Issuing Bank Lender shall not be required to issue, amend or increase any Letter of Credit and the Swingline Lender shall not be required to fund any Swingline LoanCredit, unless such Issuing Bank PNC or the Swingline Issuing Lender, as the case may be, shall have entered into arrangements with the Borrowers Borrower or such Lender, satisfactory to such Issuing Bank PNC or the Swingline Issuing Lender, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that each of the Administrative Agent, the BorrowersBorrower, PNC and the applicable Issuing Banks and, Lender agree in the case of the U.S. Facility, the Swingline Lender agrees writing that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and/or LC Exposure Administrative Agent will so notify the parties hereto, and the Ratable Share of the Swing Loans and Letter of Credit Obligations of the Lenders under the applicable Facility shall be readjusted to reflect the inclusion of such Lender’s Commitment Commitment, and on the such date of such readjustment such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Swing Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable PercentageRatable Share.
Appears in 2 contracts
Sources: Credit Agreement (Federated Investors Inc /Pa/), Credit Agreement (Federated Investors Inc /Pa/)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Credit Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Credit Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion unused amount of the Commitments Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a2.10(a);
(b) such Defaulting Lender shall not have the right to vote on any issue on which voting is required (other than to the extent expressly provided in Section 9.02(b)) and the Revolving Credit Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or the Supermajority Revolving any other requisite Lenders have taken or may take any action hereunderhereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.02), in each case, except to the extent expressly provided in the second to last sentence of Section 9.02(b);
(c) if any Swingline Exposure or LC Exposure L/C Obligations exists at the time a such Revolving Credit Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure L/C Obligations of such Defaulting Lender shall be reallocated among the nonNon-Defaulting Lenders of the applicable Class 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 Credit Commitment represented by such ▇▇▇▇▇▇’s Revolving Credit Commitment at the time of such reallocation calculated disregarding the Revolving Credit Commitments of the Defaulting Lenders at such time) but only to the extent (x) that the sum of all nonNon-Defaulting Lenders’ Revolving Credit Exposures under such Class of Commitments plus such Defaulting Lender’s Swingline Exposure and LC Exposure under such Class of Commitments L/C Obligations does not exceed the total sum of all nonNon-Defaulting Lenders’ Commitments of such Class, (y) no non-Defaulting Lender’s Revolving Exposure under such Class of Commitments is increased above such Lender’s Commitment of such Class as a result thereof and (z) no Event of Default has then occurred and is continuingCredit Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the applicable Borrower Borrowers shall within one Business Day following notice by the Administrative Agent (x) first, in the case of the U.S. Borrower, prepay such Swingline Exposure and (y) second, Cash Collateralize, cash collateralize for the benefit of the applicable Issuing Bank, such Borrowers’ obligations corresponding to L/C Issuers the portion of such Defaulting Lender’s LC Exposure under the applicable Class of Commitments (after giving effect to any partial reallocation pursuant to clause (i) above) L/C Obligations that has not been reallocated in accordance with the procedures set forth in Section 2.06(k) 2.16 for so long as such LC Exposure L/C Obligations is outstanding;
(iii) if a Borrower Cash Collateralizes the Borrowers cash collateralize any portion of such Defaulting Lender’s LC Exposure L/C Obligations pursuant to clause (ii) above, such Borrower the Borrowers shall not be required to pay any participation fees to such Defaulting Lender pursuant to Section 2.12(b2.03(j) with respect to such Defaulting Lender’s LC Exposure during the period portion of such Defaulting Lender’s LC Exposure L/C Obligations for so long as such Defaulting Lender’s L/C Obligations is Cash Collateralizedcash collateralized;
(iv) if the LC Exposure any portion of the non-L/C Obligations of such Defaulting Lenders Lender is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a2.10(a) and 2.12(b2.03(j) shall be adjusted in accordance with to give effect to such non-Defaulting Lenders’ Applicable Percentagesreallocation; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure L/C Obligations is neither reallocated nor Cash Collateralized cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank L/C Issuer or any other Lender hereunder, all letter of credit participation fees payable under Section 2.12(b2.03(j) with respect to such Defaulting Lender’s LC Exposure L/C Obligations shall be payable to the applicable Issuing Bank L/C Issuers (and allocated among them ratably based on the amount of such Defaulting Lender’s L/C Obligations attributable to Letters of Credit issued by each L/C Issuer) until and to the extent that such LC Exposure L/C Obligations is reallocated and/or Cash Collateralizedcash collateralized; and
(d) so long as such Revolving Credit Lender is a Defaulting Lender, the applicable Issuing Bank under the applicable Facility no L/C Issuer shall not be required to issue, amend amend, renew or increase extend any Letter of Credit, unless in each case it is satisfied that the related exposure and the Defaulting Lender’s then outstanding L/C Obligations will be 100% fully covered by the Revolving Credit Commitments of the nonNon-Defaulting Lenders and/or Cash Collateral will be cash collateral provided by the applicable Borrower(s) Borrowers in accordance with Section 2.20(c2.21(c), and participating interests in any such newly made Swingline Loan issued, amended, reviewed or newly issued or increased extended Letter of Credit shall will be allocated among nonthe Non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein). If In the event that (ix) a Bankruptcy Event with respect to the a Revolving Credit Lender Parent of any Lender shall occur have occurred following the Second Amendment Effective Date date hereof and for so long as such event Bankruptcy Event shall continue or (iiy) any Issuing Bank or the Swingline Lender L/C Issuer has a good faith belief that any Revolving Credit Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, such Issuing Bank no L/C Issuer shall not be required to issue, amend amend, renew or increase extend any Letter of Credit and the Swingline Lender shall not be required to fund any Swingline LoanCredit, unless such Issuing Bank or the Swingline Lender, as the case may be, L/C Issuer shall have entered into arrangements with the Borrowers applicable Borrower, or the Borrower Agent on its behalf, or such Lender, Revolving Credit Lender satisfactory to such Issuing Bank or the Swingline Lender, as the case may be, L/C Issuer to defease any risk to it in respect of such Lender hereunder. In the event that each of the Administrative Agent, the Borrowers, the applicable Issuing Banks and, in the case of the U.S. Facility, the Swingline Lender agrees Company and each L/C 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 and/or LC Exposure L/C Obligations of the Revolving Credit Lenders under the applicable Facility shall be readjusted to reflect the inclusion of such Lender’s Commitment reallocated in accordance with their Applicable Percentages and on the such date of such readjustment 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 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 Credit Commitment represented by such ▇▇▇▇▇▇’s Revolving Credit Commitment at the time of such reallocation calculated including the Revolving Credit Commitment of such Restored Lender but disregarding the Revolving Credit Commitments of the Defaulting Lenders at such time). Subject to Section 9.18, no reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that ▇▇▇▇▇▇ having become a Defaulting Lender, including any claim of a Non-Defaulting Lender as a result of such Non-Defaulting ▇▇▇▇▇▇’s increased exposure following such reallocation.
Appears in 2 contracts
Sources: Credit Agreement (NCR Corp), Credit Agreement (NCR Atleos, LLC)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) fees shall cease to accrue on the unfunded portion of the Commitments Commitment of such Defaulting Lender pursuant to Section 2.12(a2.11(a);
(b) such Defaulting Lender shall not have the right to vote on any issue on which voting is required (other than to the extent expressly provided in Section 9.02(b)) and the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required all Lenders or the Supermajority Revolving Required Lenders have taken or may take any action hereunderhereunder (including any consent to any amendment or waiver pursuant to Section 9.02), provided that (i) such Defaulting Lender’s Commitment may not be increased or extended without its consent and (ii) the principal amount of, or interest or fees payable on, such Defaulting Lender’s Loans or participations in LC Disbursements may not be reduced or excused or the scheduled date of payment may not be postponed as to such Defaulting Lender without such Defaulting Lender’s consent;
(c) if any Swingline Exposure or LC Exposure exists exists, or any Protective Advance is outstanding, at the time a Lender becomes a Defaulting Lender then:
(i) all or any part of the such Swingline Exposure and LC Exposure of such Defaulting Lender and participations in Protective Advances shall be reallocated among the non-Defaulting Lenders of the applicable Class in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures under such Class of Commitments plus such Defaulting Lender’s Swingline Exposure and LC Exposure under such Class of Commitments and participations in Protective Advances does not exceed the total of all non-Defaulting Lenders’ Commitments of such Class, (y) it being understood that in no event shall any non-Defaulting Lender’s Revolving Credit Exposure under such Class of Commitments is increased above exceed such Lender’s Commitment of such Class as a result thereof of such reallocation) and (zy) no Event of Default has then occurred and is continuingthe 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 applicable Borrower Borrowers or the Account Parties shall within one two Business Day Days following notice by the Administrative Agent (x) first, in the case of the U.S. Borrower, prepay such Swingline Exposure and Protective Advances and (y) second, Cash Collateralizecash collateralize (or, for the benefit of the if approved by each applicable Issuing BankBank in its sole discretion, such Borrowers’ obligations corresponding to otherwise provide credit support for) such Defaulting Lender’s LC Exposure under the applicable Class of Commitments (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.06(k2.05(j) for so long as such LC Exposure is outstanding;
(iii) if a Borrower Cash Collateralizes the Borrowers or the Account Parties cash collateralize, or otherwise provide credit support for, any portion of such Defaulting Lender’s LC Exposure pursuant to clause this paragraph (ii) abovec), such Borrower the Borrowers shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.12(b2.11(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is Cash Collateralizedcash collateralized or otherwise has credit support provided therefor;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause this paragraph (i) abovec), then the fees payable to the Lenders pursuant to Sections 2.12(aSection 2.11(a) and 2.12(bSection 2.11(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither cash collateralized, nor otherwise has credit support provided therefor nor is reallocated nor Cash Collateralized pursuant to clause this paragraph (i) or (ii) abovec), then, without prejudice to any rights or remedies of any the Issuing Bank or any Lender hereunder, all letter Letter of credit 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 Bank until such LC Exposure is reallocated cash collateralized, otherwise has credit support provided therefor and/or Cash Collateralized; andis reallocated;
(d) so long as such any Lender is a Defaulting Lender, the applicable Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Bank under the applicable Facility shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or Cash Collateral cash collateral (or other credit support, if approved by each applicable Issuing Bank in its sole discretion) will be provided by the applicable Borrower(s) Borrowers or the Account Parties in accordance with Section 2.20(c2.21(c), and participating interests in any such newly made Swingline Loan or newly issued or increased Letter of Credit or newly made Swingline Loan shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i2.21(c)(i) (and such Defaulting Lender Lenders shall not participate therein). If ; and
(e) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.17(c), but excluding Section 2.18(b)) shall, in lieu of being distributed to such Defaulting Lender, be retained by the Administrative Agent in a segregated account (which may be invested as requested by the Parent Borrower, at the Parent Borrower’s risk and expense, subject to approval by the Administrative Agent) and, subject to any applicable requirements of law, be applied at such time or times as may be determined by the Administrative Agent (i) a Bankruptcy Event with respect first, to the Parent payment of any amounts (other than in respect of Protective Advances) owing by such Defaulting Lender shall occur following to the Second Amendment Effective Date and for so long as such event shall continue or Administrative Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to any Issuing Bank or the Swingline Lender hereunder or to the Administrative Agent in respect of Protective Advances, (iii) third, as the Parent Borrower may request (so long as no Default has a good faith belief that occurred and is continuing) to the funding of any Lender has defaulted Loan or the funding or cash collateralization of any participating interest in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, such Issuing Bank shall not be required to issue, amend or increase any Letter of Credit and the Swingline Lender shall not be required to fund any Swingline Loan, unless Protective Advance or Letter of Credit in respect of which such Issuing Bank or Defaulting Lender has failed to fund its portion thereof as required by this Agreement (such amounts to be determined by the Swingline LenderAdministrative Agent in consultation with the Parent Borrower), as (iv) fourth, if so determined by the case may be, shall have entered into arrangements with Administrative Agent and the Borrowers or the Account Parties, held in such account as cash collateral for future funding obligations of the Defaulting Lender under this Agreement, (v) fifth, pro rata, to the payment of any amounts owing to the Borrowers, the Account Parties or the Lenders as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers, the Account Parties or any Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement and (vi) sixth, satisfactory to such Issuing Bank Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is (x) a prepayment of the Swingline Lender, as the case may be, to defease principal amount of any risk Loans or reimbursement obligations in respect of LC Disbursements which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 4.02 are satisfied, such 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 each of the Administrative Agent, the Borrowers, the applicable Account Parties, the Issuing Banks and, in the case of the U.S. Facility, Bank and the Swingline Lender each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and/or and LC Exposure of the Lenders under the applicable Facility Lenders, and their participations in Protective Advances, shall be readjusted to reflect the inclusion of such Lender’s Commitment and on the such date of such readjustment such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline LoansLoans and Protective Advances) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage. For the avoidance of doubt, no adjustments will be made retroactively with respect to fees that ceased to accrue pursuant to clause (a) above while such Lender was a Defaulting Lender or payments that were allocated pursuant to clause (e) above while such Lender was a Defaulting Lender.
Appears in 2 contracts
Sources: Credit Agreement (J C Penney Co Inc), Credit Agreement (J C Penney Co Inc)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long except as provided in Section 2.24(e) if such Lender is ceases to be a Defaulting Lender:
(a) facility fees shall cease to accrue on the unfunded unused portion of the Commitments Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a2.13(a), and participation fees shall cease to accrue on the LC Exposure of such Defaulting Lender to the extent it is cash collateralized pursuant to Section 2.24 (c);
(b) such Defaulting Lender shall not have the right to vote on any issue on which voting is required (other than to the extent expressly provided in Section 9.02(b)) and the Revolving Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or the Supermajority Revolving Lenders have taken or may take any action hereunder;
(c) if any Swingline Exposure or LC Exposure exists at the time a Lender becomes a Defaulting Lender Lender, then:
(i) all or any part of the such Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the non-Lenders that are not Defaulting Lenders of the applicable Class ratably in accordance with their respective Applicable Percentages Revolving Commitment Percentages, but only to the extent (xA) the sum of all nonNon-Defaulting Lenders’ Revolving Exposures under such Class of Commitments Credit Exposure plus such Defaulting Lender’s Swingline Exposure and LC Exposure under such Class of Commitments does not exceed the total of all nonNon-Defaulting Lenders’ Commitments of such ClassRevolving Commitments, (yB) no nonthe sum of any Non-Defaulting Lender’s Revolving Exposure under Credit Exposures plus such Class of Commitments is increased above such Non-Defaulting Lender’s Applicable Revolving Commitment Percentage of the Defaulting Lender’s LC Exposure and Defaulting Lender’s Swingline Exposure does not exceed such Class as a result thereof Non-Defaulting Lender’s Revolving Commitment and (zC) no Event of Default has then occurred and is continuing;the conditions set forth in Section 4.02 are satisfied at such time; and
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the applicable Borrower Borrowers shall within one Business Day following notice by the Administrative Agent Agent, without prejudice to any rights or remedies of the Borrowers against such Defaulting Lender, (xA) first, in the case of the U.S. Borrower, prepay such Swingline Exposure and (yB) second, Cash Collateralize, for the benefit of the applicable Issuing Bank, such Borrowers’ obligations corresponding to cash collateralize such Defaulting Lender’s LC Exposure under the applicable Class of Commitments (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.06(k2.07(j) for so long as such LC Exposure is outstanding;
(iii) if a Borrower Cash Collateralizes the Borrowers cash collateralize any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, such Borrower the Borrowers shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.12(b2.13(b) with respect to such Defaulting Lender’s cash collateralized LC Exposure during the period such Defaulting Lender’s LC Exposure is Cash Collateralizedcash collateralized;
(iv) if the LC Exposure of the nonNon-Defaulting Lenders is reallocated pursuant to clause this paragraph (i) abovec), then the fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(bSection 2.13(b) shall be adjusted in accordance with such nonNon-Defaulting Lenders’ Applicable Revolving Commitment Percentages; andor
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither cash collateralized nor reallocated nor Cash Collateralized pursuant to clause this paragraph (i) or (ii) abovec), then, without prejudice to any rights or remedies of any the applicable Issuing Bank or any Lender hereunder, all 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 applicable Issuing Bank until to be held as cash collateral for the Defaulting Lender’s LC Exposure (it being agreed that any such amount not applied to satisfy obligations of such Defaulting Lender in respect of such LC Exposure is reallocated and/or Cash Collateralized; andwill, when such LC Exposure ceases to exist, be returned (A) to such Defaulting Lender if it has ceased to be a Defaulting Lender as provided in paragraph (e) below and (B) otherwise to the Company);
(d) so long as such a Swingline Lender is a Defaulting Lender, the applicable shall not be required to fund any Swingline Loan and an Issuing Bank under the applicable Facility shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Revolving Commitments of the nonNon-Defaulting Lenders and/or Cash Collateral cash collateral will be provided by the applicable Borrower(s) Borrowers in accordance with Section 2.20(c)paragraph (c) of this Section, and participating interests in any such newly made Swingline Loan or newly issued or increased Letter of Credit or newly made Swingline Loan shall be allocated among nonNon-Defaulting Lenders in a manner consistent with paragraph (c)(i) of this Section 2.20(c)(i) (and such Defaulting Lender Lenders shall not participate therein). If ; and
(ie) a Bankruptcy Event with respect to the Parent of any Lender shall occur following the Second Amendment Effective Date and for so long as such event shall continue or (ii) any Issuing Bank or the Swingline Lender has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, such Issuing Bank shall not be required to issue, amend or increase any Letter of Credit and the Swingline Lender shall not be required to fund any Swingline Loan, unless such Issuing Bank or the Swingline Lender, as the case may be, shall have entered into arrangements with the Borrowers or such Lender, satisfactory to such Issuing Bank or the Swingline Lender, as the case may be, to defease any risk in respect of such Lender hereunder. In the event and on the date that each of the Administrative Agent, the BorrowersCompany, the applicable each Issuing Banks and, in the case of the U.S. Facility, the Bank and Swingline Lender agrees shall agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and/or and LC Exposure of the other Lenders under the applicable Facility shall be readjusted to reflect the inclusion of such Lender’s Revolving Commitment and on the such date of such readjustment such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) and unreimbursed LC Disbursements of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Revolving Commitment Percentage; provided that no adjustments will be made retroactively with respect to facility fees and participation fees accrued or payments made by or on behalf of any Borrower while such Lender was a Defaulting Lender; and provided further that except to the extent otherwise expressly agreed by the Borrowers and any other affected parties, no termination of a Lender’s status as a Defaulting Lender will constitute a waiver or release of any claim of any Borrower or other affected party hereunder arising from such Lender’s having been a Defaulting Lender.
(f) as long as no Default or Event of Default has occurred and is continuing, the Company may (i) prepay, without penalty or premium, the Loans made by a Defaulting Lender and/or (ii) terminate the unused amount of the Revolving Commitment of a Defaulting Lender, in each case, (x) without pro rata prepayment of Loans of other Lenders or pro rata termination of Revolving Commitments of other Lenders and (y) upon not less than two Business Days’ prior notice to the Administrative Agent (which will promptly notify the Lenders thereof), it being understood that such prepayment and/or termination will not be deemed to be a waiver or release of any claim any of the Borrowers or the Administrative Agent may have against such Defaulting Lender.
(g) nothing in this Section shall affect any rights or remedies any Borrower may have against any Defaulting Lender.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Fortune Brands Inc), Revolving Credit Agreement (Fortune Brands Inc)
Defaulting Lenders. (a) Notwithstanding any provision of this Agreement anything to the contrarycontrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long then, until such time as such Lender is no longer a Defaulting Lender, to the extent permitted by applicable law:
(ai) fees shall cease to accrue on the unfunded portion of the Commitments of such Defaulting Lender pursuant 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 in Section 2.12(a)10.2;
(b) such Defaulting Lender shall not have the right to vote on any issue on which voting is required (other than to the extent expressly provided in Section 9.02(b)) and the Commitment and Revolving Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or the Supermajority Revolving Lenders have taken or may take any action hereunder;
(cii) if any Swingline Exposure or LC Exposure Letter of Credit Usage exists at the time a such Lender becomes a Defaulting Lender then:
(iA) all or any part of the Swingline Exposure and LC Exposure Letter of Credit Usage of such Defaulting Lender shall be reallocated among the nonNon-Defaulting Lenders of the applicable Class in accordance with their respective Applicable Percentages but only to the extent that (x) the sum of all nonNon-Defaulting Lenders’ Revolving Exposures under such Class of Commitments plus such Defaulting Lender’s Swingline Exposure and LC Exposure under such Class Letter of Commitments Credit Usage does not exceed the total of all nonNon-Defaulting Lenders’ Commitments of such ClassCommitments, (y) no nonthe sum of any Non-Defaulting Lender’s Revolving Exposure under plus its Pro Rata Share of such Class Defaulting Lender’s Letter of Commitments is increased above Credit Usage does not exceed such Non-Defaulting Lender’s Commitment of such Class as a result thereof and (z) no Event of Default has then occurred and is continuingthe conditions set forth in Section 4.2 are satisfied at such time;
(iiB) if the reallocation described in clause (iA) above cannot, or can only partially, be effected, the applicable Borrower shall within one Business Day following notice by the Administrative Agent (x) first, in the case of the U.S. Borrower, prepay such Swingline Exposure and (y) second, Cash Collateralize, cash collateralize for the benefit of the applicable Issuing Bank, such Borrowers’ Banks only the Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure under the applicable Class Letter of Commitments Credit Usage (after giving effect to any partial reallocation pursuant to clause (iA) above) in accordance with the procedures set forth in Section 2.06(k2.4(j) for so long as such LC Exposure Letter of Credit Usage is outstanding;
(iiiC) if a the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s LC Exposure Letter of Credit Usage pursuant to clause (iiB) above, such the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.12(b2.11(b) with respect to such Defaulting Lender’s LC Exposure Letter of Credit Usage during the period such Defaulting Lender’s LC Exposure Letter of Credit Usage is Cash Collateralizedcash collateralized;
(ivD) if the LC Exposure Letter of Credit Usage of the nonNon-Defaulting Lenders is reallocated pursuant to clause (iA) 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 such nonNon-Defaulting Lenders’ Applicable Percentages; and
(vE) if all or any portion of such Defaulting Lender’s LC Exposure Letter of Credit Usage is neither reallocated nor Cash Collateralized cash collateralized pursuant to clause (iA) or (iiB) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all letter of credit fees payable under Section 2.12(b2.11(b) with respect to such Defaulting Lender’s LC Exposure Letter of Credit Usage shall be payable to the applicable Issuing Bank Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s Letter of Credit Usage attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure Letter of Credit Usage is reallocated and/or Cash Collateralized; andcash collateralized in accordance with the procedures set forth in Section 2.4(j);
(diii) so long as such Lender is a Defaulting Lender, the applicable no Issuing Bank under the applicable Facility shall not be required to issue, amend amend, extend or increase any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Letter of Credit Usage will be 100% covered by the Commitments of the nonNon-Defaulting Lenders and/or Cash Collateral cash collateral will be provided by the applicable Borrower(s) Borrower in accordance with Section 2.20(c2.21(a)(ii), and participating interests in any such newly made Swingline Loan or newly issued issued, amended, extended or increased Letter of Credit shall be allocated among nonNon-Defaulting Lenders in a manner consistent with Section 2.20(c)(i2.21(a)(ii)(A) (and such Defaulting Lender shall not participate therein). If ;
(iiv) 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 VIII or otherwise) or received by the Administrative Agent from a Bankruptcy Event Defaulting Lender pursuant to Section 10.8 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 each Issuing Bank; third, to cash collateralize each Issuing Bank’s Letter of Credit Usage with respect to such Defaulting Lender in accordance with Section 2.4(j); fourth, as the Parent of any Lender shall occur following the Second Amendment Effective Date and for Borrower may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which such event shall continue or Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and the Borrower, to be held in a non-interest bearing deposit account and released pro rata in order to (iix) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) cash collateralize each Issuing Bank’s future Letter of Credit Usage with respect to such Defaulting Lender with respect to future Letters of Credit issued under this Agreement, in accordance with Section 2.4(j); sixth, to the payment of any Issuing Bank amounts owing to the Lenders or the Swingline Lender has Issuing Banks as a good faith belief that result of any judgment of a court of competent jurisdiction obtained by any Lender has defaulted in fulfilling against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under one this Agreement; seventh, so long as no Default or more other agreements 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 Letters of Credit disbursements in respect of which such Defaulting Lender commits to extend credithas not fully funded its appropriate share, and (y) such Loans or Letters of Credit were made when the conditions set forth in Section 4.2 were satisfied or waived, such Issuing Bank payment shall be applied solely to pay the Loans of or Letters of Credit disbursements owed to 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 Loans and funded and unfunded participations in Letters of Credit are held by the Lenders pro rata in accordance with the Commitments (without giving effect to Section 2.21(a)(ii)(A)). 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
(v) No Defaulting Lender shall be entitled to receive any commitment fee pursuant to Section 2.11 for any period during which that Lender is a Defaulting Lender (and the Borrower shall not be required to pay any such fee that otherwise would have been required to have been paid to that Defaulting Lender).
(b) If (i) any Lender becomes a Defaulting Lender, no Issuing Bank shall be required to issue, amend amend, extend or increase any Letter of Credit and the Swingline Lender shall not be required to fund any Swingline LoanCredit, unless such Issuing Bank or the Swingline Lender, as the case may be, shall have entered into arrangements with the Borrowers Borrower or such Lender, reasonably satisfactory to such the Issuing Bank or the Swingline Lender, as the case may beBank, to defease any risk to it in respect of such Lender hereunder. In .
(c) If the event Borrower, each Issuing Bank and the Administrative Agent each agree in writing that each a Lender is no longer a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the Administrative Agenteffective date specified in such notice and subject to any conditions set forth therein, that Lender will, to the Borrowersextent applicable, the applicable Issuing Banks and, in the case purchase at par that portion of outstanding Loans of the U.S. Facilityother Lenders or take such other actions as the Administrative Agent may determine to be necessary to cause the Loans and participations in Letters of Credit to be held on a pro rata basis by the Lenders in accordance with their respective Applicable Percentages, the Swingline Lender agrees that a Defaulting Lender has adequately remedied all matters that caused whereupon such Lender will cease to be a Defaulting Lender, then the Swingline Exposure and/or LC Exposure ; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Lenders under Borrower while that Lender was a Defaulting Lender; provided, further, that except to the applicable Facility shall be readjusted extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to reflect the inclusion Lender will constitute a waiver or release of such any claim of any party hereunder arising from that Lender’s Commitment and on the date of such readjustment such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentagehaving been a Defaulting Lender.
Appears in 2 contracts
Sources: Revolving Credit and Guaranty Agreement (Coupang, Inc.), Revolving Credit and Guaranty Agreement (Coupang, Inc.)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) fees shall cease to accrue on the unfunded unused portion of the Commitments of such Defaulting Lender pursuant to Section 2.12(a);
(b) such Defaulting Lender shall not have the right to vote on any issue on which voting is required (other than to the extent expressly provided in Section 9.02(b)) and the Commitment Commitments and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or the Supermajority Revolving Lenders have taken or may take any action hereunderhereunder (including any consent to any amendment, waiver or other modification pursuant to Section 11.02); provided that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender affected thereby;
(c) if any Swingline Exposure or US Tranche LC Exposure exists at the time 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 non-Defaulting Lenders of the applicable Class constituting US Tranche Lenders in accordance with their respective Applicable Percentages US Tranche Revolving Percentages, but only to the extent (xA) the sum of all non-Defaulting Lenders’ US Tranche Revolving Exposures under such Class of Commitments plus such Defaulting Lender’s Swingline Exposure and US Tranche LC Exposure under such Class of Commitments does not exceed the total of all non-Defaulting Lenders’ US Tranche Revolving Commitments of such Class, and (yB) no each non-Defaulting Lender’s US Tranche Revolving Exposure under does not exceed such Class of Commitments is increased above such non-Defaulting Lender’s Commitment of such Class as a result thereof and (z) no Event of Default has then occurred and is continuingUS Tranche Revolving Commitment;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the applicable Borrower shall within one (1) Business Day following notice by the Administrative Agent (x) firstAgent, in the case of the U.S. Borrower, prepay such Swingline Exposure and (y) second, Cash Collateralize, Company shall cash collateralize for the benefit of the applicable Issuing Bank, such Borrowers’ Bank only the Company’s obligations corresponding to such Defaulting Lender’s LC Exposure under the applicable Class of Commitments (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.06(k2.05(j) for so long as such LC Exposure is outstanding;
(iii) if a Borrower Cash Collateralizes the Company cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, such Borrower the Company shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is Cash Collateralizedcash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable US Tranche Revolving Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor Cash Collateralized cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any the Issuing Bank or any other Lender hereunder, all letter of credit fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank until such LC Exposure is reallocated and/or Cash Collateralizedcash collateralized;
(d) [reserved]; and
(de) in the case of a US Tranche Lender, so long as such Lender is a Defaulting Lender, the applicable Issuing Bank under the applicable Facility shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the US Tranche Revolving Commitments of the non-Defaulting Lenders and/or Cash Collateral cash collateral will be provided by the applicable Borrower(s) Company in accordance with Section 2.20(c2.23(c), and participating interests in any such newly made Swingline Loan or newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i2.23(c)(i) (and such Defaulting Lender shall not participate therein). If 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.
(i) a Bankruptcy Event or a Bail-In Action with respect to the a Parent of any Lender shall occur following the Second Amendment Effective Date date hereof and for so long as such event shall continue or (ii) any Issuing Bank or the Swingline Lender has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, such Issuing Bank shall not be required to issue, amend or increase any Letter of Credit and the Swingline Lender shall not be required to fund any Swingline LoanCredit, unless such Issuing Bank or the Swingline Lender, as the case may be, shall have entered into arrangements with the Borrowers or such Lender, satisfactory to such Issuing Bank or the Swingline Lender, as the case may be, 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 Borrowers, Company and the applicable Issuing Banks and, in the case of the U.S. Facility, the Swingline Lender agrees Bank agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and/or LC Exposure of the Lenders under the applicable Facility shall be readjusted to reflect the inclusion of such Lender’s Commitment Commitments and on the date of such readjustment such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable related Tranche Percentage; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the 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 having been a Defaulting 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 Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) facility fees shall cease to accrue on the unfunded portion unused amount of the Commitments Commitment of such Defaulting Lender pursuant to Section 2.12(a2.11(a);
(b) such Defaulting Lender shall not have the right to vote on any issue on which voting is required (other than to the extent expressly provided in Section 9.02(b)) and the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or the Supermajority Revolving any other requisite Lenders have taken or may take any action hereunderhereunder 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 a such Lender becomes a Defaulting Lender then:
(i) all so long as no Default or any part Event of Default has occurred and is continuing, the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the nonNon-Defaulting Lenders of the applicable Class in accordance with their respective Applicable Percentages but only to the extent (x) that the sum of all nonNon-Defaulting Lenders’ Revolving Exposures under such Class of Commitments plus such Defaulting Lender’s Swingline Exposure and LC Exposure under such Class of Commitments does not exceed the total sum of all nonNon-Defaulting Lenders’ Commitments of such Class, (y) no non-Defaulting Lender’s Revolving Exposure under such Class of Commitments is increased above such Lender’s Commitment of such Class as a result thereof and (z) no Event of Default has then occurred and is continuingCommitments;
(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 (x) firstAgent, in the case of the U.S. Borrower, prepay such Swingline Exposure and (y) second, Cash Collateralize, cash collateralize for the benefit of the applicable Issuing Bank, such Borrowers’ obligations corresponding to Banks the portion of such Defaulting Lender’s LC Exposure under the applicable Class of Commitments (after giving effect to any partial reallocation pursuant to clause (i) above) that has not been reallocated in accordance with the procedures set forth in Section 2.06(k2.05(j) for so long as such LC Exposure is outstanding;
(iii) if a the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, such the Borrower shall not be required to pay any 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 during the period for so long as such Defaulting Lender’s LC Exposure is Cash Collateralizedcash collateralized;
(iv) if any portion of the LC Exposure of the non-such Defaulting Lenders Lender is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a2.11(a) and 2.12(b2.11(b) shall be adjusted in accordance with to give effect to such non-Defaulting Lenders’ Applicable Percentagesreallocation; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor Cash Collateralized cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all letter facility fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of credit 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 applicable Issuing Bank Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or Cash Collateralizedcash collateralized; and
(d) so long as such Lender is a Defaulting Lender, the applicable no Issuing Bank under the applicable Facility shall not be required to issue, amend amend, renew or increase extend any Letter of Credit, unless in each case it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% fully covered by the Commitments of the nonNon-Defaulting Lenders and/or Cash Collateral will be cash collateral provided by the applicable Borrower(s) Borrower in accordance with Section 2.20(c2.22(c), and participating interests in any such newly made Swingline Loan issued, amended, reviewed or newly issued or increased extended Letter of Credit shall will be allocated among nonthe Non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i2.22(c)(i) (and such Defaulting Lender shall not participate therein). If In the event that (ix) a Bankruptcy Event with respect to the a Lender Parent of any Lender shall occur have occurred following the Second Amendment Effective Date date hereof and for so long as such event Bankruptcy Event shall continue or (iiy) any Issuing Bank or the Swingline Lender has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, such no Issuing Bank shall not be required to issue, amend amend, renew or increase extend any Letter of Credit and the Swingline Lender shall not be required to fund any Swingline LoanCredit, unless such Issuing Bank or the Swingline Lender, as the case may be, shall have entered into arrangements with the Borrowers Borrower or such Lender, Lender satisfactory to such Issuing Bank or the Swingline Lender, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that each of the Administrative Agent, the Borrowers, Borrower and each Issuing Bank each agree (provided that the applicable Issuing Banks and, in the case Borrower’s agreement shall not be required if an Event of the U.S. Facility, the Swingline Lender agrees Default has occurred and is continuing) that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and/or LC Exposure of the Lenders under the applicable Facility shall be readjusted to reflect the inclusion of such Lender’s Commitment and on the such date of such readjustment such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage.
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 Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) fees shall cease to accrue on the unfunded portion of the Commitments Commitment of such Defaulting Lender pursuant to Section 2.12(a)2.11;
(b) such for purposes of computing the 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 not have the right to vote on any issue on which voting is required (other than be computed without giving effect to the extent expressly Commitment of that Defaulting Lender; provided in Section 9.02(b)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 Commitment and Revolving Exposure aggregate obligation of such a non-Defaulting Lender to acquire, refinance or fund participations in Letters of Credit shall not be included in determining whether exceed the Required Lenders or positive difference, if any, of (1) the Supermajority Revolving Lenders have taken or may take any action hereunderLetter of Credit Commitment of that non-Defaulting Lender minus (2) the aggregate Letter of Credit Obligations of that Lender;
(c) if any Swingline Exposure or LC Exposure exists at the time 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 of the applicable Class in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Exposures under such Class of Commitments plus such Defaulting Lender’s Swingline Exposure and LC Exposure under such Class of Commitments does not exceed the total of all non-Defaulting Lenders’ Commitments of such Class, (y) no non-Defaulting Lender’s Revolving Exposure under such Class of Commitments is increased above such Lender’s Commitment of such Class as a result thereof and (z) no Event of Default has then occurred and is continuing;
(ii) if the reallocation described in clause (ib) above cannot, or can only partially, be effected, then the applicable Borrower Borrowers shall within one Business Day following notice by the Administrative Agent (x) first, in the case of the U.S. Borrower, prepay such Swingline Exposure and (y) second, Cash Collateralize, Collateralize for the benefit of the applicable Issuing Bank, such Issuer only the Borrowers’ obligations corresponding to such Defaulting Lender’s LC Letter of Credit Exposure under the applicable Class of Commitments (after giving effect to any partial reallocation pursuant to clause (i) aboveb)) in accordance with the procedures set forth in Section 2.06(k) 2.05 for so long as such LC Letter of Credit Exposure is outstandingoutstanding and the relevant Defaulting Lender remains a Defaulting Lender;
(iiii) if a Borrower the Borrowers Cash Collateralizes Collateralize any portion of such Defaulting Lender’s LC Letter of Credit Exposure pursuant to clause (ii) abovec), such Borrower then the Borrowers shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.12(b2.11(b) with respect to such Defaulting Lender’s LC Letter of Credit Exposure during the period such Defaulting Lender’s LC Letter of Credit Exposure is Cash Collateralized;
; (ivii) if the LC Letter of Credit Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) aboveb), then the fees payable to the Lenders pursuant to Sections 2.12(aSection 2.11(a) and 2.12(b(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; and
or (viii) if all or any portion of such Defaulting Lender’s LC Letter of Credit Exposure is neither reallocated nor Cash Collateralized nor reallocated pursuant to clause (ib) or (ii) abovec), then, without prejudice to any rights or remedies of any Issuing Bank 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 2.12(b2.11(b) with respect to such Defaulting Lender’s LC Letter of Credit Exposure shall be payable to the applicable Issuing Bank Issuer until such LC Letter of Credit Exposure is reallocated Cash Collateralized and/or Cash Collateralizedreallocated;
(e) the Commitment and Loans of such Defaulting Lender shall not be included in determining whether all Lenders, the Majority Lenders, the Majority Revolving Lenders, the Majority Term Lenders, the Supermajority Lenders, or the Supermajority Revolving Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.02); provided that (i) such Defaulting Lender’s Commitment may not be increased or extended without its consent and (ii) the principal amount of, or interest or fees payable on, Loans may not be reduced or excused or the scheduled date of payment may not be postponed as to such Defaulting Lender without such Defaulting Lender’s consent; and
(df) so long as such Lender is a Defaulting Lender, the applicable Issuing Bank under the applicable Facility no Issuer shall not be required to issue, amend increase, amend, renew, replace, refinance or increase extend any Letter of Credit, Credit unless it is satisfied that the related exposure it will be 100% covered by the Commitments of the non-Defaulting Lenders and/or Cash Collateral will be provided by the applicable Borrower(s) in accordance with Section 2.20(c), and participating interests in any such newly made Swingline Loan or newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to the Parent of any Lender shall occur following the Second Amendment Effective Date and for so long as such event shall continue or (ii) any Issuing Bank or the Swingline Lender has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, such Issuing Bank shall not be required to issue, amend or increase any Letter of Credit and the Swingline Lender shall not be required to fund any Swingline Loan, unless such Issuing Bank or the Swingline Lender, as the case may be, shall have entered into arrangements with the Borrowers or such Lender, satisfactory to such Issuing Bank or the Swingline Lender, as the case may be, to defease any risk in respect of such Lender hereunder. In the event that each of the Administrative Agent, the Borrowers, the applicable Issuing Banks and, in the case of the U.S. Facility, the Swingline Lender agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline no Fronting Exposure and/or LC Exposure of the Lenders under the applicable Facility shall be readjusted to reflect the inclusion of such Lender’s Commitment and on the date of such readjustment such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentageafter 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 Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) fees shall cease to accrue on the unfunded portion of the Commitments Commitment of such Defaulting Lender pursuant to Section 2.12(a)2.11;
(b) such Defaulting Lender shall not have the right to vote on any issue on which voting is required (other than to the extent expressly provided in Section 9.02(b)) and the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or the Supermajority Revolving Lenders have taken or may take any action hereunderhereunder (including any consent to any amendment or waiver pursuant to Section 9.02), provided, that any amendment, waiver or other modification (i) requiring the consent of all Lenders or each Lender affected thereby which affects such Defaulting Lender differently than other affected Lenders or (ii) which increases or extends the Commitment of a Defaulting Lender shall require the consent of such Defaulting Lender;
(c) if any Swingline Exposure or LC Exposure exists at the time a such Lender becomes a Defaulting Lender then:
(i) all or any part of the such Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders of the applicable Class in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures under such Class of Commitments plus such Defaulting Lender’s Swingline Exposure and LC Exposure under such Class of Commitments does not exceed the total of all non-Defaulting Lenders’ Commitments of such Class, and (y) no non-Defaulting Lender’s Revolving Exposure under the conditions set forth in Section 4.02 are satisfied at such Class of Commitments is increased above such Lender’s Commitment of such Class as a result thereof and (z) no Event of Default has then occurred and is continuingtime;
(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 (x) first, in the case of the U.S. Borrower, prepay such Swingline Exposure and (y) second, Cash Collateralize, cash collateralize for the benefit of the applicable Issuing Bank, such Borrowers’ Banks only the Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure under the applicable Class of Commitments (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.06(k2.05(j) for so long as such LC Exposure is outstanding;
(iii) if a the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, such the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.12(b2.11(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is Cash Collateralized;cash collateralized; 509265-1601-13380-Active.12396546.12
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(aSection 2.11(a) and 2.12(bSection 2.11(b) shall be adjusted in accordance with such non-Defaulting Lenders’ ' Applicable Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor Cash Collateralized cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any the Issuing Bank or any Lender hereunder, all facility fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.12(b2.11(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank until such LC Exposure is reallocated cash collateralized and/or Cash Collateralized; andreallocated;
(d) so long as such Lender is a Defaulting Lender, the applicable Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Bank under the applicable Facility Banks shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or Cash Collateral cash collateral will be provided by the applicable Borrower(s) Borrower in accordance with Section 2.20(c2.19(c), and participating interests in any such newly made Swingline Loan or newly issued or increased Letter of Credit or newly made Swingline Loan shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i2.19(c)(i) (and such Defaulting Lender Lenders shall not participate therein). If (i) a Bankruptcy Event with respect to the a Parent of any Lender shall occur following the Second Amendment Effective Date date hereof and for so long as such event shall continue or (ii) any Issuing Bank or the Swingline Lender or the Issuing Bank has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, such the Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Bank Banks shall not be required to issue, amend or increase any Letter of Credit and Credit, unless the Swingline Lender shall not be required to fund any Swingline Loan, unless such Issuing Bank or the Swingline LenderIssuing Banks, as the case may be, shall have entered into arrangements with the Borrowers Borrower or such Lender, satisfactory to such Issuing Bank the Swingline Lender or the Swingline LenderIssuing Banks, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that each of the Administrative Agent, the BorrowersBorrower, the applicable Issuing Banks and, in the case of the U.S. Facility, and the Swingline Lender each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and/or and LC Exposure of the Lenders under the applicable Facility shall be readjusted to reflect the inclusion of such Lender’s Commitment and on the such date of such readjustment such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage.
Appears in 1 contract
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(ai) fees if such Lender is a US Defaulting Lender, the US Commitment Fee shall cease to accrue on the unfunded portion of the Commitments US Commitment of such Lender and (ii) if such Lender is a Canadian Defaulting Lender pursuant Lender, the Canadian Commitment Fee shall cease to Section 2.12(a)accrue on the Canadian Commitment of such Lender, in each case, so long as it is a Defaulting Lender;
(b) such Defaulting Lender shall not have the right to vote on any issue on which voting is required (other than to the extent expressly provided in Section 9.02(b)) and the Commitment and Revolving Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or the Supermajority Revolving Lenders have taken or may take any action hereunder;
(c) if any Swingline Exposure or LC Exposure exists at the time a US Lender becomes a US Defaulting Lender then:
(i) if no Default or Event of Default shall exist, all or any part of such Swingline Exposure shall be reallocated among the non-US Defaulting Lenders in accordance with their respective US Pro Rata Percentages but only to the extent the sum of all non-US Defaulting Lenders’ US Revolving Exposures plus such US Defaulting Lender’s Swingline Exposure does not exceed the total of all non-US Defaulting Lenders’ US Revolving Commitments;
(ii) if the reallocation described in the immediately preceding clause (i) above cannot, or can only partially, be effected, US Borrower shall within one Business Day following notice by the Administrative Agent prepay such Defaulting Lender’s Swingline Exposure;
(c) so long as any US Lender is a US Defaulting Lender, the Swingline Lenders shall not be required to fund any Swingline Loan, unless it is satisfied that the related exposure will be 100% covered by the US Revolving Commitments of the non-US Defaulting Lenders and participations in any such newly made Swingline Loan shall be allocated among non-US Defaulting Lenders in accordance with their respective US Pro Rata Percentages (and US Defaulting Lenders shall not participate therein);
(d) any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of any such US Defaulting Lender (whether voluntary or mandatory, at maturity, or otherwise) or received by the Administrative Agent from a US Defaulting Lender pursuant to Section 14.08 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 US Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such US Defaulting Lender to any Issuing Bank or Swingline Lenders hereunder; third, to Cash Collateralize the Issuing Banks’ L/C Exposure with respect to such US Defaulting Lender in accordance with this Section; fourth, as the US Borrower may request (so long as no US Default or US Event of Default exists), to the funding of any US Loan in respect of which such US 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 US Borrower, to be held in a deposit account and released pro rata in order to (x) satisfy such US Defaulting Lender’s potential future funding obligations with respect to US Loans under this Agreement and (y) cash collateralize the Issuing Banks’ future L/C Exposure with respect to such US Defaulting Lender with respect to future Letters of Credit issued under this Agreement, in accordance with this Section; sixth, to the payment of any amounts owing to the US Lenders, the Issuing Banks or Swingline Lenders as a result of any judgment of a court of competent jurisdiction obtained by any US Lender, the Issuing Banks or Swingline Lenders against such US Defaulting Lender as a result of such US Defaulting Lender’s breach of its obligations under this Agreement or under any other Loan Document; seventh, so long as no US Default or US Event of Default exists, to the payment of any amounts owing to the US Borrower as a result of any judgment of a court of competent jurisdiction obtained by the US Borrower against such US Defaulting Lender as a result of such US Defaulting Lender’s breach of its obligations under this Agreement or under any other Loan Document; and eighth, to such US 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 US Loans or Reimbursement Obligations in respect of which such US Defaulting Lender has not fully funded its appropriate share, and (y) such US Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 5.02 were satisfied or waived, such payment shall be applied solely to pay the US Loans of, and Reimbursement Obligations owed to, all non- US Defaulting Lenders on a pro rata basis prior to being applied to the payment of any US Loans of, or Reimbursement Obligations owed to, such US Defaulting Lender until such time as all US Loans and funded and unfunded participations in the US Borrower’s obligations corresponding to such US Defaulting Lender’s L/C Exposure and Swingline Loans are held by the US Lenders pro rata in accordance with the US Revolving Commitments without giving effect to clause (b) above or clause (f) below. Any payments, prepayments or other amounts paid or payable to a US Defaulting Lender that are applied (or held) to pay amounts owed by a US Defaulting Lender or to post cash collateral pursuant to this Section shall be deemed paid to and redirected by such US Defaulting Lender, and each US Lender irrevocably consents hereto;
(e) any amount payable to such Canadian Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise) shall, in lieu of being distributed to such Canadian Defaulting Lender, be retained by Canadian Borrower 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 Canadian Borrower (i) first, to the funding of any Canadian Loan in respect of which such Canadian Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by Canadian Borrower, (ii) second, if so determined by Canadian Borrower, held in such account as cash collateral for future funding obligations of such Canadian Defaulting Lender under this Agreement, (iii) third, to the payment of any amounts owing to Canadian Borrower as a result of any judgment of a court of competent jurisdiction obtained by Canadian Borrower such Canadian Defaulting Lender as a result of such Canadian Defaulting Lender’s breach of its obligations under this Agreement and (iv) fourth, to such Canadian Defaulting Lender or as otherwise directed by a court of competent jurisdiction;
(f) if any L/C Exposure exists with respect to such US Lender at the time such US Lender becomes a US Defaulting Lender, then:
(i) all or any part of the Swingline Exposure and LC L/C Exposure of such US Defaulting Lender shall be reallocated (effective as of the date such US Lender becomes a US Defaulting Lender) among the non-US Defaulting Lenders of the applicable Class in accordance with their respective Applicable US Pro Rata Percentages (for the purposes of such reallocation, such US Defaulting Lender’s US Revolving Commitment shall be disregarded in determining the non-US Defaulting Lenders’ respective US Pro Rata Percentages), but only to the extent that (xA) the sum of all non-US Defaulting Lenders’ Revolving Credit Exposures under such Class of Commitments plus such US Defaulting Lender’s Swingline L/C Exposure and LC Exposure under such Class of Commitments does not exceed the total of all non-US Defaulting Lenders’ Commitments of such ClassCommitments, (yB) after giving effect to any such reallocation, no non-US Defaulting Lender’s Revolving Credit Exposure under shall exceed such Class of Commitments is increased above such non-US Defaulting Lender’s Commitment of such Class as a result thereof and (zC) no Event of Default has then occurred and is continuingcontinuing at such time and the other conditions set forth in Section 5.02 have been satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the applicable Borrower shall shall, within one Business Day following the Borrower’s receipt of written notice by from the Administrative Agent (x) first, in the case of the U.S. Borrower, prepay such Swingline Exposure and (y) secondAgent, Cash Collateralize, Collateralize for the benefit of the applicable Issuing Bank, such Borrowers’ Banks only US Borrower’s obligations corresponding to such US Defaulting Lender’s LC L/C Exposure under the applicable Class of Commitments (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.06(k) 7.04 for so long as such LC L/C Exposure is outstanding;
(iii) if a US Borrower Cash Collateralizes any portion of such US Defaulting Lender’s LC L/C Exposure pursuant to clause (ii) above, such the Borrower shall not be required to pay any Letter of Credit fees to such Defaulting Lender pursuant to Section 2.12(b) 2.05 with respect to such US Defaulting Lender’s LC L/C Exposure during the period such US Defaulting Lender’s LC L/C Exposure is Cash CollateralizedCollateralized by US Borrower;
(iv) if the LC all or any portion of such US Defaulting Lender’s L/C Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the all Letter of Credit fees that otherwise would have been payable to such Defaulting Lender under Section 2.05 with respect to such US Defaulting Lender’s reallocated L/C Exposure shall be payable to the non-US Defaulting Lenders pursuant to Sections 2.12(a) and 2.12(b) shall be adjusted in accordance with such non-US Defaulting Lenders’ Applicable Percentages; andUS Pro Rata Percentages after giving effect to such reallocation;
(v) if all or any portion of such US 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 Issuing Bank or any other Lender hereunder, all letter Letter of credit Credit fees that otherwise would have been payable to such Defaulting Lender under Section 2.12(b) 2.05 with respect to such US Defaulting Lender’s LC unreallocated L/C Exposure shall be payable to the applicable Issuing Bank Banks, ratably based on the portion of the Fronting Exposure attributable to the Letters of Credit issued by each Issuing Bank, until and to the extent that such LC L/C Exposure is reallocated and/or Cash CollateralizedCollateralized pursuant to clause (i) or (ii) above; and
(dg) so long as such US Lender is determined by the Administrative Agent or any Issuing Bank to be a US Defaulting Lender, the applicable such Issuing Bank under the applicable Facility shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure Fronting Exposure and the US Defaulting Lender’s then outstanding L/C Exposure will be 100% covered by the Commitments of the non-US Defaulting Lenders and/or Cash Collateral will be provided by the applicable Borrower(s) US Borrower in accordance with Section 2.20(c)2.21, and participating interests in any such newly made Swingline Loan or newly issued or increased Letter of Credit shall be allocated among non-US Defaulting Lenders in a manner consistent with Section 2.20(c)(i) 2.21 (and such US Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to In the Parent of any Lender shall occur following event that the Second Amendment Effective Date and for so long as such event shall continue or (ii) any Issuing Bank Administrative Agent, US Borrower or the Swingline Lender has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, such Issuing Bank shall not be required to issue, amend or increase any Letter of Credit and the Swingline Lender shall not be required to fund any Swingline Loan, unless such Issuing Bank or the Swingline LenderLenders, as the case may be, shall have entered into arrangements with the Borrowers or such Lender, satisfactory to such Issuing Bank or the Swingline Lender, as the case may be, to defease any risk in respect of such Lender hereunder. In the event that each of the Administrative Agent, the Borrowers, the applicable Issuing Banks and, in the case of the U.S. Facility, the Swingline Lender agrees that a US Defaulting Lender has adequately remedied all matters that caused such US Lender to be a US Defaulting Lender, then the Swingline Exposure and/or LC Exposure of the US Lenders under the applicable Facility shall be readjusted to reflect the inclusion of such US Lender’s US Commitment and on the such date of such readjustment such US Lender shall purchase at par such of the US Loans of the other US Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such US Lender to hold such US Loans in accordance with its Applicable US Pro Rata Percentage. The rights and remedies against a Defaulting Lender under this Section 2.21 are in addition to other rights and remedies that any Borrower, the Administrative Agent, the Swingline Lenders and the non- Defaulting Lenders may have against such Defaulting Lender. The arrangements permitted or required by this Section 2.21 shall be permitted under this Agreement, notwithstanding any limitation on Liens or the pro rata sharing provisions or otherwise.
Appears in 1 contract
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as until such Lender is ceases to be a Defaulting Lender:Lender pursuant to Section 2.20(e):
(a) facility fees shall cease to accrue on the unfunded portion of the Commitments Commitment of such Defaulting Lender pursuant to Section 2.12(a), and participation fees shall cease to accrue on the LC Exposure of such Defaulting Lender to the extent it is cash collateralized pursuant to Section 2.20(c);
(b) such Defaulting Lender shall not have the right to vote on any issue on which voting is required (other than to the extent expressly provided in Section 9.02(b)) and the Commitment Commitments and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or the Supermajority Revolving Lenders have taken or may take any action hereunder;
(c) if any Swingline Exposure or LC Exposure exists at the time a Lender becomes a Defaulting Lender then:
(i) all or any part of the such Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the non-Lenders with Commitments that are not Defaulting Lenders of the applicable Class ratably in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Exposures under such Class of Commitments Credit Exposure plus such Defaulting Lender’s Swingline Exposure and LC Exposure under such Class of Commitments does not exceed the total of all non-Defaulting Lenders’ Commitments of such ClassCommitments, (y) no the sum of any non-Defaulting Lender’s Revolving Credit Exposures plus such non-Defaulting Lender’s Applicable Percentage of the Defaulting Lender’s LC Exposure under and Defaulting Lender’s Swingline Exposure does not exceed such Class of Commitments is increased above such non-Defaulting Lender’s Commitment of such Class as a result thereof and (z) no Event of Default has then occurred and is continuingthe conditions set forth in Section 4.02 are satisfied at such time; and;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the applicable Borrower shall within one Business Day following notice by the Administrative Agent Agent, without prejudice to any rights or remedies of the Borrower against such Defaulting Lender, (x) first, in the case of the U.S. Borrower, prepay such Swingline Exposure and (y) second, Cash Collateralize, cash collateralize for the benefit of the applicable Issuing Bank, such Borrowers’ Banks only the Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure under the applicable Class of Commitments (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.06(k2.06(j) for so long as such LC Exposure is outstanding;
(iii) if a the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause this paragraph (ii) abovec), such the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such Defaulting Lender’s cash collateralized LC Exposure during the period such Defaulting Lender’s LC Exposure is Cash Collateralizedcash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause this paragraph (i) abovec), then the fees payable to the Lenders with Commitments pursuant to Sections Section 2.12(a) and Section 2.12(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; andor
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither cash collateralized nor reallocated nor Cash Collateralized pursuant to clause this paragraph (i) or (ii) abovec), then, without prejudice to any rights or remedies of any the applicable Issuing Bank or any Lender hereunder, all facility fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank until such LC Exposure is reallocated cash collateralized and/or Cash Collateralizedreallocated; and
(d) so long as such Lender is a Defaulting Lender, the applicable Swingline Lender shall not be required to fund any Swingline Loan and an Issuing Bank under the applicable Facility shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or Cash Collateral cash collateral will be provided by the applicable Borrower(s) Borrower in accordance with Section 2.20(c), and participating interests in any such newly made Swingline Loan or newly issued or increased Letter of Credit or newly made Swingline Loan shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender Lenders shall not participate therein). If .
(i) a Bankruptcy Event or a Bail-In Action with respect to the a Parent of any Lender shall occur following the Second Amendment Effective Date date hereof and for so long as such event shall continue or (ii) the Swingline Lender or any Issuing Bank or the Swingline Lender has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, such the Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Bank Banks shall not be required to issue, amend or increase any Letter of Credit and Credit, unless the Swingline Lender shall not be required to fund any Swingline Loan, unless such Issuing Bank or the Swingline Lenderapplicable Issuing Bank, as the case may be, shall have entered into arrangements with the Borrowers Borrower or such Lender, satisfactory to the Swingline Lender or such Issuing Bank or the Swingline LenderBank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In .
(e) in the event and on the date that each of the Administrative Agent, the BorrowersBorrower, the applicable each Issuing Banks and, in the case of the U.S. Facility, the Bank and Swingline Lender agrees shall agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and/or and LC Exposure of the other Lenders under the applicable Facility shall be readjusted to reflect the inclusion of such Lender’s Commitment and on the such date of such readjustment such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) and unreimbursed LC Disbursements of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Revolving Loans in accordance with its Applicable Percentage; provided that no adjustments will be made retroactively with respect to facility fees and participation fees accrued or payments made by or on behalf of the Borrower while such Lender was a Defaulting Lender; and provided further that except to the extent otherwise expressly agreed by the Borrower and any other affected parties, no termination of a Lender’s status as a Defaulting Lender will constitute a waiver or release of any claim of the Borrower or other affected party hereunder arising from such Lender’s having been a Defaulting Lender.
(f) Nothing in this Section shall affect any rights or remedies the Borrower may have against any Defaulting Lender.
Appears in 1 contract
Sources: Credit Agreement (Fortune Brands Home & Security, Inc.)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) the fees shall cease to accrue on the unfunded portion of the Commitments Commitment of such Defaulting Lender pursuant to Section 2.12(a);
(b) such Defaulting Lender shall not have the right to vote on any issue on which voting is required (other than to the extent expressly provided in Section 9.02(b)) and the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Super-Majority Lenders, the Required Lenders or the Supermajority Revolving Majority Lenders have taken or may take any action hereunder;hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 11.02), provided that (i) any waiver, consent, amendment or modification otherwise requiring the consent of such Lender or each affected Lender shall require the consent of such Defaulting Lender, (ii) any waiver, consent, amendment or modification requiring the consent of all Lenders shall require the consent of such Defaulting Lender (except in respect of any increases in the Maximum Facility Amount) and (iii) the Commitment of such Defaulting Lender may not be increased or extended, nor amounts owed to such Lender reduced (except as expressly provided herein), or the final maturity thereof extended, without the consent of such Defaulting Lender.
(c) if any Swingline Exposure or LC Exposure exists at the time a such Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders of the applicable Class in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures under such Class of Commitments plus such Defaulting Lender’s Swingline Exposure and LC Exposure under such Class of Commitments does not exceed the total of all non-Defaulting Lenders’ Commitments of such Class, (y) no non-Defaulting Lender’s Revolving Exposure under such Class of Commitments is increased above such Lender’s Commitment of such Class as a result thereof and (z) no Event of Default has then occurred and is continuingCommitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the applicable Borrower shall shall, within one (1) Business Day following notice by the Administrative Agent (x) firstAgent, in the case of the U.S. Borrower, prepay such Swingline Exposure and (y) second, Cash Collateralize, cash collateralize for the benefit of the applicable Issuing Bank, such Borrowers’ Bank only the Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure under the applicable Class of Commitments (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.06(k2.06(j) for so long as such LC Exposure is outstanding;
(iii) if a the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, such the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is Cash Collateralizedcash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections Section 2.12(a) and Section 2.12(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither cash collateralized nor reallocated nor Cash Collateralized pursuant to clause clauses (i) or (ii) above, then, without prejudice to any rights or remedies of any the Issuing Bank or any Lender hereunder, all letter of credit fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank until and to the extent that such LC Exposure is reallocated cash collateralized and/or Cash Collateralizedreallocated; and
(d) so long as such Lender is a Defaulting Lender, the applicable Issuing Bank under the applicable Facility shall not be required to issue, amend amend, or increase any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or Cash Collateral cash collateral will be provided by the applicable Borrower(s) Borrower in accordance with Section 2.20(c), and any participating interests in any such newly made Swingline Loan or newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein). If .
(i) a Bankruptcy Event or a Bail-In Action with respect to the Parent of any Lender Parent shall occur following the Second Amendment Effective Date date hereof and for so long as such event shall continue or (ii) any the Issuing Bank or the Swingline Lender has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, such the Issuing Bank shall not be required to issue, amend amend, or increase any Letter of Credit and the Swingline Lender shall not be required to fund any Swingline LoanCredit, unless such the Issuing Bank or the Swingline Lender, as the case may be, shall have entered into arrangements with the Borrowers Borrower or such Lender, satisfactory to such the Issuing Bank or the Swingline Lender, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that each of the Administrative Agent, the BorrowersBorrower, and the applicable Issuing Banks and, in the case of the U.S. Facility, the Swingline Lender Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and/or LC Exposure of the Lenders under the applicable Facility shall be readjusted to reflect the inclusion of such Lender’s Commitment and on the such date of such readjustment such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage.
Appears in 1 contract
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) fees shall cease to accrue on the unfunded portion of the Commitments Commitment of such Defaulting Lender pursuant to Section 2.12(a2.11(a), (c) and/or (e), as applicable;
(b) such Defaulting Lender shall not have the right to vote on any issue on which voting is required (other than to the extent expressly provided in Section 9.02(b)) and the Commitment and Revolving Exposure of such Defaulting Lender to approve or disapprove any amendment, waiver or consent with respect this Agreement shall not be included limited as set forth in determining whether the Required Lenders or the Supermajority Revolving Lenders have taken or may take any action hereunderSection 10.02(b);
(c) if any Swingline Exposure or LC Exposure exists at the time a such Lender becomes a Defaulting Lender then:
(iA) all or any part of the US Swingline Exposure and US LC Exposure of such Defaulting Lender Lender, if any, shall be reallocated among the non-Defaulting US Lenders of the applicable Class in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all non-Defaulting US Lenders’ Revolving US Credit Exposures under such Class of Commitments plus such Defaulting Lender’s US Swingline Exposure and US LC Exposure under such Class of Commitments does not exceed the total of all non-Defaulting US Lenders’ Commitments US Commitments; (B) all or any part of the Euro Swingline Exposure and Euro LC Exposure of such ClassDefaulting Lender, (y) no if any, shall be reallocated among the non-Defaulting Euro Lenders in accordance with their respective Applicable Percentages but only to the extent the sum of all non-Defaulting Euro Lenders’ Euro Credit Exposures plus such Defaulting Lender’s Revolving Euro Swingline Exposure under and Euro LC Exposure does not exceed the total of all non-Defaulting Euro Lenders’ Euro Commitments; and (C) all or any part of the Canadian LC Exposure of such Class Defaulting Lender, if any, shall be reallocated among the non-Defaulting Canadian Lenders in accordance with their respective Applicable Percentages but only to the extent the sum of Commitments is increased above all non-Defaulting Canadian Lenders’ Canadian Credit Exposures plus such Defaulting Lender’s Commitment Canadian LC Exposure does not exceed the total of all non-Defaulting Canadian Lenders’ Canadian Commitments; provided that each such Class as reallocation shall be given effect only if, at the date the applicable Lender became a result thereof and (z) Defaulting Lender, no Default or Event of Default has then occurred and is continuingexists;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the applicable Borrower Parent shall within one Business Day following notice by the US Administrative Agent (x) first, in the case of the U.S. Borrower, prepay such Swingline Exposure and (y) second, Cash Collateralize, cash collateralize for the benefit of each Issuing Lender only the applicable Issuing Bank, such Borrowers’ obligations corresponding to such Defaulting Lender’s LC Exposure under the applicable Class of Commitments (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.06(k2.05(j) for so long as such LC Exposure is outstanding;
(iii) if a Borrower Cash Collateralizes the Parent cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, such Borrower the Borrowers shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.12(b2.11(b), (d) and/or (f), as applicable, with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is Cash Collateralizedcash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(aSection 2.11(a) and 2.12(b) through (f), as applicable, shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor Cash Collateralized cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank Lender or any other Lender hereunder, all facility fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.12(b2.11(b), (d) and/or (f), as applicable, with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable relevant Issuing Bank Lenders until and to the extent that such LC Exposure is reallocated and/or Cash Collateralizedcash collateralized; and
(d) so long as such Lender is a Defaulting Lender, (A) the applicable US Swingline Lender shall not be required to fund any US Swingline Loan and the US Issuing Bank under the applicable Facility Lender shall not be required to issue, amend or increase any US Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding US LC Exposure will be 100% covered by the US Commitments of the non-Defaulting US Lenders and/or Cash Collateral cash collateral will be provided by the applicable Borrower(s) Parent in accordance with Section 2.20(c), and participating interests in any such newly made US Swingline Loan or any newly issued or increased US Letter of Credit shall be allocated among non-Defaulting US Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein); (B) the Euro Swingline Lender shall not be required to fund any Euro Swingline Loan and the Euro Issuing Lender shall not be required to issue, amend or increase any Euro Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Euro LC Exposure will be 100% covered by the Euro Commitments of the non-Defaulting Euro Lenders and/or cash collateral will be provided by the Parent in accordance with Section 2.20(c), and participating interests in any newly made Euro Swingline Loan or any newly issued or increased Euro Letter of Credit shall be allocated among non-Defaulting Euro Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein); and (C) the Canadian Issuing Lender shall not be required to issue, amend or increase any Canadian Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Canadian LC Exposure will be 100% covered by the Canadian Commitments of the non-Defaulting Canadian Lenders and/or cash collateral will be provided by the Parent in accordance with Section 2.20(c), and participating interests in any newly issued or increased Canadian Letter of Credit shall be allocated among non-Defaulting Canadian Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to the a Lender Parent of any Lender shall occur following the Second Amendment Effective Date and for so long as such event shall continue or (ii) any Swingline Lender or Issuing Bank or the Swingline Lender has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, 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 and the Swingline Lender shall not be required to fund any Swingline LoanCredit, unless such Swingline Lender or such Issuing Bank or the Swingline LenderBank, as the case may be, shall have entered into arrangements with the Borrowers Parent or such Lender, satisfactory to such Swingline Lender or Issuing Bank or the Swingline LenderBank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that each of the US Administrative Agent, the Borrowers, the applicable Issuing Banks and, in the case of the U.S. FacilityParent, the Swingline Lender Lenders and the Issuing Lenders each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and/or and LC Exposure of the Lenders under the applicable Facility shall be readjusted to reflect the inclusion of such Lender’s Commitment and on the such date of such readjustment such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the US Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage.
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Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) fees payable under Section 2.12(a) shall cease to accrue on the unfunded portion of the Commitments Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a)Lender;
(b) such Defaulting Lender shall not have the right to vote on any issue on which voting is required (other than to the extent expressly provided in Section 9.02(b)) and the Commitment and Revolving Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or the Supermajority Revolving Lenders have taken or may take any action hereunder;
(c) if any Swingline Exposure or LC Exposure exists at the time 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 of the applicable Class in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Exposures under such Class of Commitments plus such Defaulting Lender’s Swingline Exposure and LC Exposure under such Class of Commitments does not exceed the total of all non-Defaulting Lenders’ Commitments of such Class, (y) no non-Defaulting Lender’s Revolving Exposure under such Class of Commitments is increased above such Lender’s Commitment of such Class as a result thereof and (z) no Event of Default has then occurred and is continuingCommitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the applicable Borrower Borrowers shall within one Business Day following notice by the Administrative Agent (x) first, in the case of the U.S. Borrower, prepay such Swingline Exposure and (y) second, Cash Collateralizecash collateralize, for the benefit of the applicable Issuing Bank, such the Borrowers’ obligations corresponding to such Defaulting Lender’s LC Exposure under the applicable Class of Commitments (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.06(k2.06(j) for so long as such LC Exposure is outstanding;
(iii) if a Borrower Cash Collateralizes the Borrowers cash collateralize any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, such Borrower the Borrowers shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is Cash Collateralizedcash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor Cash Collateralized cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any the Issuing Bank or any Lender hereunder, all letter of credit fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank until such LC Exposure is reallocated and/or Cash Collateralizedcash collateralized; and
(d) so long as such Lender is a Defaulting Lender, the applicable Issuing Bank under the applicable Facility shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or Cash Collateral cash collateral will be provided by the applicable Borrower(s) Borrowers in accordance with Section 2.20(c), and participating interests in any such newly made Swingline Loan or newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein). If .
(i) a Bankruptcy Event with respect to the Parent of any Lender shall occur following the Second Amendment Effective Date date hereof and for so long as such event shall continue or (ii) any the Issuing Bank or the Swingline Lender has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, such the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit and the Swingline Lender shall not be required to fund any Swingline LoanCredit, unless such the Issuing Bank or the Swingline Lender, as the case may be, shall have entered into arrangements with the Borrowers or such Lender, satisfactory to such the Issuing Bank or the Swingline Lender, as the case may be, to defease any risk in respect of such Lender hereunder. In the event that each of the Administrative Agent, the Borrowers, the applicable Issuing Banks and, in the case of the U.S. Facility, Bank and the Swingline Lender agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and/or and LC Exposure of the Lenders under the applicable Facility shall be readjusted to reflect the inclusion of such Lender’s Revolving Commitment and on the date of such readjustment such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage.
Appears in 1 contract
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) fees Commitment Fees shall cease to accrue on the unfunded portion of the Commitments Commitment of such Defaulting Lender pursuant to Section 2.12(a)2.11(a) if such Lender is a Defaulting Lender pursuant to (a) or (b) of the definition thereof;
(b) in the event that such Defaulting Lender shall not have fail to respond to any request for any waiver, consent, amendment or modification requested hereunder within twenty (20) days of written request from the right to vote on any issue on which voting is required (other than to the extent expressly provided in Section 9.02(b)) and the Commitment and Revolving Exposure of Administrative Agent, such Defaulting Lender shall not 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 all Lenders or the Supermajority Revolving Required Lenders have taken or may take any action hereunderhereunder provided the foregoing shall not apply with respect to amendments or waivers pursuant to Section 9.02(b)(i), 9.02(b)(ii), or 9.02(b)(iv);
(c) if any Swingline Exposure or LC Exposure exists at the time a Lender becomes a Defaulting Lender then:
(i) all or any part of the such Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the nonNon-Defaulting Lenders of the applicable Class in accordance with their respective Applicable Percentages but only to the extent that as a result thereof (x) the sum of all nonNon-Defaulting Lenders’ Revolving Exposures under such Class of Commitments Credit Exposure plus such Defaulting Lender’s Swingline Exposure and LC Exposure under such Class of Commitments does would not exceed the total of all nonNon-Defaulting Lenders’ Commitments of such ClassCommitments, (y) no nonthe sum of each Non-Defaulting Lender’s Revolving Credit Exposure plus such Non-Defaulting Lender’s share under this clause (i) of such Class of Commitments is increased above Defaulting Lender’s Swingline Exposure and LC Exposure would not exceed such Non-Defaulting Lender’s Commitment of such Class as a result thereof and (z) no Event of Default has then occurred and is continuing;the conditions set forth in Section 3.02 are satisfied at such time; and
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effectedaffected, the applicable Borrower Company shall within one (1) Business Day following notice by the Administrative Agent (x) first, in the case of the U.S. Borrower, prepay such Swingline Exposure and (y) second, Cash Collateralize, for the benefit of the applicable Issuing Bank, such Borrowers’ obligations corresponding to cash collateralize such Defaulting Lender’s LC Exposure under the applicable Class of Commitments (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.06(k2.05(i) for so long as such LC Exposure is are outstanding;
(iii) if a Borrower Cash Collateralizes the Company cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) abovethis Section 2.21(c), such Borrower the Company shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.12(b) 2.11 with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is Cash Collateralized;are cash collateralized; and
(iv) if the LC Exposure of the nonNon-Defaulting Lenders is are reallocated pursuant to clause (i) abovethis Section 2.21(c), then the fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(b) Section 2.11 shall be adjusted to give effect to such reallocations in accordance with such nonNon-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 Lender hereunder, all letter of credit fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank until such LC Exposure is reallocated and/or Cash Collateralized; and;
(d) so long as such any Lender is a Defaulting Lender, the applicable Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Bank under the applicable Facility shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the nonNon-Defaulting Lenders and/or Cash Collateral will be provided by the applicable Borrower(s) cash collateralized in accordance with this Section 2.20(c2.21 (and, if applicable, Section 2.05(i), and participating interests in any such newly made Swingline Loan or newly issued or increased Letter of Credit or newly made Swingline Loan shall be allocated among nonNon-Defaulting Lenders in a manner consistent with Section 2.20(c)(i2.21(c)(i) (and such Defaulting Lender Lenders shall not participate therein). If ; and
(e) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.17 but excluding Section 2.18(b) shall, in lieu of being distributed to such Defaulting Lender, subject to any applicable Requirement of Law, be applied (i) a Bankruptcy Event with respect first, to the Parent payment of any amounts owing by such Defaulting Lender shall occur following to the Second Amendment Effective Date and for so long as such event shall continue or Administrative Agent hereunder, (ii) any Issuing Bank or the Swingline Lender has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend creditsecond, such Issuing Bank shall not be required to issue, amend or increase any Letter of Credit and the Swingline Lender shall not be required to fund any Swingline Loan, unless such Issuing Bank or the Swingline Lender, as the case may be, shall have entered into arrangements with the Borrowers or such Lender, satisfactory to such Issuing Bank or the Swingline Lender, as the case may bepro rata, to defease the payment of any risk in respect of amounts then owing by such Defaulting Lender hereunder. In to the event that each of the Administrative Agent, the Borrowers, the applicable Issuing Banks hereunder, and, in the case of the U.S. Facility, the Swingline Lender agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and/or LC Exposure of the Lenders under the applicable Facility shall be readjusted to reflect the inclusion of such Lender’s Commitment and on the date of such readjustment such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage.
Appears in 1 contract
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) fees shall cease to accrue on the unfunded portion of the Commitments unused Commitment of such Defaulting Lender pursuant to Section 2.12(a2.11(a) and (b), as applicable;
(b) such Defaulting Lender shall not have the right to vote on any issue on which voting is required (other than to the extent expressly provided in Section 9.02(b)) and the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or the Supermajority Revolving Lenders have taken or may take any action hereunderhereunder (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender affected thereby;
(c) if any Swingline Exposure or LC Exposure exists at the time a such Lender becomes a Defaulting Lender then:
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 of the applicable Class in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures under such Class of Commitments plus such Defaulting Lender’s Swingline Exposure and LC Exposure under such Class of Commitments does not exceed the total of all non-Defaulting Lenders’ Commitments of such Class, (y) no non-Defaulting Lender’s Revolving Exposure under such Class of Commitments is increased above such Lender’s Commitment of such Class as a result thereof Commitments; and (z) no Event of Default has then occurred and is continuing;
(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 (x) first, in the case of the U.S. BorrowerAgent, prepay such Swingline Exposure and (y) second, Cash Collateralize, for the benefit of the applicable Issuing Bank, such Borrowers’ obligations corresponding to such Defaulting Lender’s LC Exposure under the applicable Class of Commitments (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.06(k) for so long as such LC Exposure is outstanding;
(iii) if a Borrower Cash Collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, such Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is Cash Collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(b) shall be adjusted in accordance with such non-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 Lender hereunder, all letter of credit fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank until such LC Exposure is reallocated and/or Cash CollateralizedExposure; and
(d) so long as such Lender is a Defaulting Lender, the applicable Issuing Bank under the applicable Facility each Swingline Lender shall not be required to issue, amend or increase fund any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or Cash Collateral will be provided by the applicable Borrower(s) in accordance with Section 2.20(c)Swingline Loan, and participating interests in any such newly made Swingline Loan or newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i2.22(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to the Parent of any Person as to which any Lender is, directly or indirectly, a subsidiary shall occur following the Second Amendment Effective Date date hereof and for so long as such event shall continue or (ii) any Issuing Bank or the Swingline Lender has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, such Issuing Bank shall not be required to issue, amend or increase any Letter of Credit and the Swingline Lender shall not be required to fund any Swingline Loan, Loan unless such Issuing Bank or the Swingline Lender, as the case may be, Lender shall have entered into arrangements with the Borrowers Parent, the Borrower or such Lender, satisfactory to such Issuing Bank or the Swingline Lender, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that each of the Administrative Agent, the Borrowers, the applicable Issuing Banks and, in the case of the U.S. Facility, Borrower and the Swingline Lender Lenders each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and/or LC Exposure of the Lenders under the applicable Facility shall be readjusted to reflect the inclusion of such Lender’s Commitment and on the such date of such readjustment such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage.
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Sources: Revolving Credit Facility (MF Global Holdings Ltd.)
Defaulting Lenders. Notwithstanding any provision of this Credit Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting LenderLender :
(a) fees shall cease to accrue on the unfunded portion of the Commitments of such Defaulting Lender pursuant to Section 2.12(a2.14(a);
(b) such Defaulting Lender shall not have the right to vote on any issue on which voting is required (other than to the extent expressly provided in Section 9.02(b)) and the Commitment and Revolving Exposure Commitments of such Defaulting Lender shall not be included in determining whether the Required Lenders or the Supermajority Revolving Majority Lenders have taken or may take any action hereunderhereunder (including any consent to any amendment, waiver or other modification pursuant to Section 11.10); provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender affected thereby;
(c) if any Swingline Exposure or DSR LC Exposure exists at the time a DSR LC Lender becomes a Defaulting Lender (and to the extent that such DSR LC Exposure has not been converted into an LC Loan in accordance with this Credit Agreement) then:
(i) all or any part of such Defaulting Lender’s Proportionate Share (Commitment) of the Swingline Exposure and DSR LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting DSR LC Lenders of the applicable Class in accordance with their respective Applicable Percentages each such non-Defaulting DSR Lender’s Proportionate Share (Commitment) of the Total DSR LC Commitment (provided that, for the purposes of such calculation, the Defaulting Lender’s Proportionate Share (Commitment) of the Total DSR LC Commitment shall be disregarded), as applicable, but only to the extent (x) the sum of all non-Defaulting DSR LC Lenders’ Revolving Exposures under such Class of Commitments plus such Defaulting Lender’s Swingline Exposure and DSR LC Exposure under such Class of Commitments does not exceed the total of all non-Defaulting DSR LC Lenders’ Commitments of such Class, (y) no non-Defaulting Lender’s Revolving Exposure under such Class of Commitments is increased above such Lender’s Commitment of such Class as a result thereof and (z) no Event of Default has then occurred and is continuingDSR LC 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 (x) first, in the case of the U.S. Borrower, prepay such Swingline Exposure and (y) second, Cash Collateralize, for the benefit of the applicable Issuing Bank, such Borrowers’ obligations corresponding to such Defaulting Lender’s LC Exposure under the applicable Class of Commitments (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.06(k) for so long as such LC Exposure is outstanding;
(iii) if a Borrower Cash Collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, such Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.12(b2.14(c) with respect to such Defaulting Lender’s Lenders’ Proportionate Share (Commitment) of the DSR LC Exposure during the period such Defaulting Lender’s LC Exposure is Cash Collateralized;Exposure; and
(iviii) if the DSR LC Exposure of the non-Defaulting DSR LC Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(aSection 2.14(a) and 2.12(bSection 2.14(c) shall be adjusted in accordance with such non-Defaulting DSR LC Lenders’ Applicable Percentages; and
Proportionate Share (vCommitment) 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 Lender hereunder, all letter of credit fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank until such LC Exposure is reallocated and/or Cash Collateralized; and
(d) so long as such Lender is a Defaulting Lender, the applicable Issuing Bank under the applicable Facility shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or Cash Collateral will be provided by the applicable Borrower(s) in accordance with Section 2.20(c), and participating interests in any such newly made Swingline Loan or newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to the Parent of any Lender shall occur following the Second Amendment Effective Date and for so long as such event shall continue or (ii) any Issuing Bank or the Swingline Lender has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, such Issuing Bank shall not be required to issue, amend or increase any Letter of Credit and the Swingline Lender shall not be required to fund any Swingline Loan, unless such Issuing Bank or the Swingline Lender, as the case may be, shall have entered into arrangements with the Borrowers or such Lender, satisfactory to such Issuing Bank or the Swingline Lender, as the case may be, to defease any risk in respect of such Lender hereunder. In the event that each of the Administrative Agent, the Borrowers, the applicable Issuing Banks and, in the case of the U.S. Facility, the Swingline Lender agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and/or Total DSR LC Exposure of the Lenders under the applicable Facility shall be readjusted to reflect the inclusion of such Lender’s Commitment and on the date of such readjustment such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage.Commitment;
Appears in 1 contract
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) fees shall cease to accrue on the unfunded portion of the Commitments Commitment of such Defaulting Lender pursuant to Section 2.12(a);
(b) such Defaulting Lender shall not have the right to vote on any issue on which voting is required (other than to the extent expressly provided in Section 9.02(b)) and the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or the Supermajority Revolving Lenders have taken or may take any action hereunderhereunder (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided, that, except as otherwise provided in Section 9.02, this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender directly affected thereby;
(c) if any Swingline Exposure or LC Exposure exists at the time a such Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders of the applicable Class in accordance with their respective Applicable Percentages but only to the extent that (xA) no Default has occurred and is continuing at the time of such reallocation, (B) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures under such Class of Commitments plus such Defaulting Lender’s Swingline Exposure and LC Exposure under such Class of Commitments does not exceed the total of all non-Defaulting Lenders’ Commitments of such Class, and (yC) no each non-Defaulting Lender’s Revolving Credit Exposure under does not exceed such Class of Commitments is increased above such non-Defaulting Lender’s Commitment of such Class as a result thereof and (z) no Event of Default has then occurred and is continuingCommitment;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the applicable Borrower shall within one (1) Business Day following notice by the Administrative Agent (x) first, in the case of the U.S. Borrower, prepay such Swingline Exposure and (y) second, Cash Collateralize, cash collateralize for the benefit of the applicable Issuing Bank, such Borrowers’ Bank only the Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure under the applicable Class of Commitments (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.06(k2.06(j) for so long as such LC Exposure is outstanding;
(iii) if a the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, such the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is Cash Collateralizedcash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections Section 2.12(a) and Section 2.12(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor Cash Collateralized cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any the Issuing Bank or any other Lender hereunder, all letter of credit fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank until and to the extent that such LC Exposure is reallocated and/or Cash Collateralizedcash collateralized; and
(d) so long as such Lender is a Defaulting Lender, the applicable Issuing Bank under the applicable Facility shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or Cash Collateral cash collateral will be provided by the applicable Borrower(s) Borrower in accordance with Section 2.20(c2.21(c), and participating interests in any such newly made Swingline Loan or newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i2.21(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to the a Lender Parent of any Lender shall occur following the Second Amendment Effective Date date hereof and for so long as such event shall continue or (ii) any the Issuing Bank or the Swingline Lender has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, such the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit and the Swingline Lender shall not be required to fund any Swingline LoanCredit, unless such the Issuing Bank or the Swingline Lender, as the case may be, shall have entered into arrangements with the Borrowers Borrower or such Lender, satisfactory to such the Issuing Bank or the Swingline Lender, as the case may beBank, to defease any risk to it in respect of such Lender hereunder. In the event that each of the Administrative Agent, the Borrowers, Borrower and the applicable Issuing Banks and, in the case of the U.S. Facility, the Swingline Lender Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and/or LC Exposure of the Lenders under the applicable Facility shall be readjusted to reflect the inclusion of such Lender’s Commitment and on the such date of such readjustment such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage.
Appears in 1 contract
Defaulting Lenders. Notwithstanding any provision of this Agreement anything to the contrarycontrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long then, until such time as such that Lender is no longer a Defaulting Lender, to the extent permitted by applicable Law:
(a) fees shall cease to accrue on the unfunded portion of the Commitments of such That Defaulting Lender pursuant to Section 2.12(a);
(b) such Defaulting Lender shall not have the Lender’s right to vote on approve or disapprove any issue on which voting is required (other than amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in the extent expressly provided in Section 9.02(b)) and the Commitment and Revolving Exposure definition of such Defaulting Lender shall not be included in determining whether the Required Lenders or the Supermajority Revolving Lenders have taken or may take any action hereunder;Lenders.
(c) if That Defaulting Lender (x) shall be entitled to receive any Swingline Exposure or LC Exposure exists at the time a Commitment Fee pursuant to Section 2.5 for any period during which that 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 of the applicable Class in accordance with their respective Applicable Percentages but only to the extent (x) allocable to the sum of all non-Defaulting Lenders’ Revolving Exposures under such Class (1) the outstanding amount of Commitments plus such Defaulting the Loans funded by it and (2) its Aggregate Exposure Percentage of the stated amount of Letters of Credit and Swingline Loans for which it has provided Cash Collateral pursuant to this Agreement (and the Borrower shall (A) be required to pay to each of the Issuing Lender and the Swingline Lender’s Swingline Exposure and LC Exposure under such Class of Commitments does not exceed , as applicable, the total of all non-Defaulting Lenders’ Commitments amount of such Class, (y) no non-fee allocable to its Fronting Exposure arising from that Defaulting Lender’s Revolving Exposure under such Class of Commitments is increased above such Lender’s Commitment of such Class as a result thereof Lender and (zB) no Event of Default has then occurred and is continuing;
(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 (x) first, in the case of the U.S. Borrower, prepay such Swingline Exposure and (y) second, Cash Collateralize, for the benefit of the applicable Issuing Bank, such Borrowers’ obligations corresponding to such Defaulting Lender’s LC Exposure under the applicable Class of Commitments (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.06(k) for so long as such LC Exposure is outstanding;
(iii) if a Borrower Cash Collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, such Borrower shall not be required to pay any fees the remaining amount of such fee that otherwise would have been required to such Defaulting Lender pursuant have been paid to Section 2.12(b) with respect to such that Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is Cash Collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(b(y) shall be adjusted limited in accordance with such non-Defaulting Lenders’ Applicable Percentages; and
(v) if all or any portion its right to receive Letter 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 Lender hereunder, all letter of credit fees payable under Credit Fees as provided in Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank until such LC Exposure is reallocated and/or Cash Collateralized; and3.3.
(d) so long as such Lender During any period in which there is a Defaulting Lender, for purposes of computing the applicable Issuing Bank under the applicable Facility shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Commitments amount of the obligation of each non-Defaulting Lenders and/or Cash Collateral will be provided by the applicable Borrower(s) Lender to acquire, refinance or fund Loans, participations in accordance with Section 2.20(c), and participating interests in any such newly made Swingline Loan or newly issued or increased Letter Letters of Credit shall be allocated among or Swingline Loans, the “Aggregate Exposure Percentage”, “Revolving Percentage” and “Multicurrency Revolving Percentage” of each non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein). If be computed without giving effect to the Commitment of that Defaulting Lender; provided that, (i) a Bankruptcy Event with respect to each such reallocation shall be given effect only if, at the Parent of any Lender shall occur following the Second Amendment Effective Date and for so long as such event shall continue or (ii) any Issuing Bank or the Swingline Lender has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, such Issuing Bank shall not be required to issue, amend or increase any Letter of Credit and the Swingline Lender shall not be required to fund any Swingline Loan, unless such Issuing Bank or the Swingline Lender, as the case may be, shall have entered into arrangements with the Borrowers or such Lender, satisfactory to such Issuing Bank or the Swingline Lender, as the case may be, to defease any risk in respect of such Lender hereunder. In the event that each of the Administrative Agent, the Borrowers, date the applicable Issuing Banks and, in the case of the U.S. Facility, the Swingline Lender agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be becomes a Defaulting Lender, then no Default or Event of Default exists or on such later date if and when such Default or Event of Default is cured or waived; and (ii) the Swingline Exposure and/or LC Exposure aggregate obligation of the Lenders under the applicable Facility shall be readjusted to reflect the inclusion of such Lender’s Commitment and on the date of such readjustment such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such each non-Defaulting Lender to hold such acquire, refinance or fund Loans, participations in Letters of Credit and Swingline Loans in accordance with its Applicable Percentage.shall not exceed the
Appears in 1 contract
Sources: Credit Agreement (Kadant Inc)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) facility fees shall cease to accrue on the unfunded portion of the Commitments Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a)2.12(b) ;
(b) such Defaulting Lender shall not have the right to vote on any issue on which voting is required (other than to the extent expressly provided in Section 9.02(b)) and the Commitment Commitments, Term Loan Exposure and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or the Supermajority Revolving Required Facility Lenders have taken or may take any action hereunderhereunder (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided, that (i) such Defaulting Lender’s Commitments may not be increased or extended without its consent and (ii) the principal amount of, or interest or fees payable on, Loans or LC Disbursements may not be reduced or excused or the scheduled date of payment may not be postponed as to such Defaulting Lender without such Defaulting Lender’s consent;
(c) if any Swingline Exposure or LC Exposure exists at the time a such Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders of the applicable Class that are Revolving Lenders in accordance with their respective Applicable Revolving Percentages but only to the extent that (x) the sum of all such non-Defaulting Lenders’ Revolving Credit Exposures under such Class of Commitments plus such Defaulting Lender’s Swingline Exposure and LC Exposure under such Class of Commitments does not exceed the total of all non-Defaulting Lenders’ Revolving Commitments of such Class, and (y) no non-Defaulting Lender’s Revolving Exposure under such Class of Commitments is increased above such Lender’s Commitment of such Class as a result thereof the conditions set forth in Section 4.02(a) and (zb) no Event of Default has then occurred and is continuingare satisfied at such time;
(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 (x) first, in the case of the U.S. Borrower, prepay such Swingline Exposure and (y) second, Cash Collateralize, cash collateralize for the benefit of the applicable Issuing Bank, such Borrowers’ Bank only the Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure under the applicable Class of Commitments (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.06(k2.06(j) for so long as such LC Exposure is outstanding;
(iii) if a the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, such the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.12(b2.12(c) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is Cash Collateralizedcash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(bSection 2.12(c) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Revolving Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor Cash Collateralized cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any the Issuing Bank or any other Lender hereunder, all facility fees payable under Section 2.12(b) that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Revolving Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.12(b2.12(c) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank until and to the extent that such LC Exposure is reallocated and/or Cash Collateralizedcash collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender, the applicable Issuing Bank under the applicable Facility shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Revolving Commitments of the non-Defaulting Lenders and/or Cash Collateral cash collateral will be provided by the applicable Borrower(s) Borrower in accordance with Section 2.20(c), and participating interests in any such newly made Swingline Loan or newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to the Parent of any Lender shall occur following the Second Amendment Effective Date and for so long as such event shall continue or (ii) any Issuing Bank or the Swingline Lender has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, such Issuing Bank shall not be required to issue, amend or increase any Letter of Credit and the Swingline Lender shall not be required to fund any Swingline Loan, unless such Issuing Bank or the Swingline Lender, as the case may be, shall have entered into arrangements with the Borrowers or such Lender, satisfactory to such Issuing Bank or the Swingline Lender, as the case may be, to defease any risk in respect of such Lender hereunder. In the event that each of the Administrative Agent, the Borrowers, Borrower and the applicable Issuing Banks and, in the case of the U.S. Facility, the Swingline Lender Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and/or LC Exposure of the Lenders under the applicable Facility shall be readjusted to reflect the inclusion of such Lender’s Revolving Commitment and on the such date of such readjustment such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Revolving Percentage.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Brixmor Operating Partnership LP)
Defaulting Lenders. (a) Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(ai) fees shall cease to accrue on the unfunded portion of the Commitments of such no Defaulting Lender shall be entitled to receive any unused commitment fee pursuant to Section 2.12(a) for any period during which that Lender is a Defaulting Lender (and the Obligors shall not be required to pay at any time any such fee that otherwise would have been required to have been paid during such period to that Defaulting Lender);
(bii) such Defaulting Lender shall not have the right to vote on any issue on which voting is required (other than to the extent expressly provided in Section 9.02(b)) Commitments and the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or the Supermajority Revolving Lenders have taken or may take any action hereunderhereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.02);
(ciii) if any Swingline Exposure or LC Exposure exists at the time a such Lender becomes a Defaulting Lender then:
(iA) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders of the applicable Class that are Lenders in accordance with their respective Applicable Percentages (calculated without regard to such Defaulting Lender’s Commitment) but only to the extent (x) that the sum of all such non-Defaulting Lenders’ Revolving Credit Exposures under such Class of Commitments plus such Defaulting Lender’s Swingline Exposure and LC Exposure under such Class of Commitments does not exceed the total of all non-Defaulting Lenders’ Commitments Commitments; provided that no reallocation hereunder shall constitute a waiver or release of any claim of any party hereto against a Defaulting Lender arising from that ▇▇▇▇▇▇ having been a Defaulting Lender, including any claim of a non-Defaulting Lender as a result of such Class, (y) no non-Defaulting Lender’s Revolving Exposure under increased exposure following such Class of Commitments is increased above such Lender’s Commitment of such Class as a result thereof and (z) no Event of Default has then occurred and is continuingreallocation;
(iiB) if the reallocation described in clause (iA) above cannot, or can only partially, be effected, the applicable Borrower Obligors shall within one Business Day following notice by the Administrative Agent Agent, without prejudice to any right or remedy available to them hereunder or under law, (x) first, in the case of the U.S. Borrower, prepay such Swingline Exposure and (y) second, Cash Collateralize, cash collateralize for the benefit of the applicable Issuing Bank, such BorrowersBanks only the Obligors’ obligations corresponding to such Defaulting Lender’s LC Exposure under the applicable Class of Commitments (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.06(k2.06(j) for so long as such LC Exposure is outstanding;
(iiiC) if a Borrower Cash Collateralizes an Obligor cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (iiB) above, such Borrower Obligor shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.12(b2.12(c) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is Cash Collateralizedcash collateralized;
(ivD) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (iA) above, then the fees payable to the Lenders pursuant to Sections Section 2.12(a) and Section 2.12(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; and
(vE) if all or any portion of such Defaulting Lender’s LC Exposure is 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 Banks or any other Lender hereunder, all letter of credit fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank Banks until and to the extent that such LC Exposure is reallocated and/or Cash Collateralized; andcash collateralized.
(div) so long as such Lender is a Defaulting Lender, the applicable Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Bank under the applicable Facility Banks shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or Cash Collateral cash collateral will be provided by the applicable Borrower(s) Obligors in accordance with Section 2.20(c2.20(a)(iii), and participating interests in any such newly made Swingline Loan or any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i2.20(a)(iii)(C) (and such Defaulting Lender shall not participate therein). If .
(ib) a Bankruptcy Event with respect to the Parent of any Lender shall occur following the Second Amendment Effective Date and for so long as such event shall continue or (ii) any Issuing Bank or the Swingline Lender has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, such Issuing Bank shall not be required to issue, amend or increase any Letter of Credit and the Swingline Lender shall not be required to fund any Swingline Loan, unless such Issuing Bank or the Swingline Lender, as the case may be, shall have entered into arrangements with the Borrowers or such Lender, satisfactory to such Issuing Bank or the Swingline Lender, as the case may be, to defease any risk in respect of such Lender hereunder. In the event that each of the Administrative Agent, the Borrowers, the applicable Issuing Banks and, in the case of the U.S. FacilityBorrower, the Swingline Lender and each Issuing Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and/or and LC Exposure of the Lenders under the applicable Facility shall be readjusted to reflect the inclusion of such Lender’s Commitment and on the such date of such readjustment such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of any Loan Party while that Lender was a Defaulting Lender; and provided, further, that no change of a Lender’s status from Defaulting Lender to Lender shall constitute a waiver or release of any claim of any party hereto arising from that ▇▇▇▇▇▇ having been a Defaulting Lender.
(c) 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 10.08 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 or Swingline Lender hereunder; third, to cash collateralize the Issuing Banks’ LC Exposure with respect to such Defaulting Lender; fourth, as the applicable Obligor 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 applicable Obligor, 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 with respect to future Letters of Credit issued under this Agreement; sixth, to the payment of any amounts owing to the Lenders, any Issuing Bank or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, the Issuing Banks or Swingline 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 applicable Obligor as a result of any judgment of a court of competent jurisdiction obtained by the applicable Obligor 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 obligations under any issued Letters of Credit and Swingline Loans are held by the Lenders pro rata in accordance with the commitments under the applicable Facility without giving effect to Section 2.20(a)(iii). Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 2.20(c) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
Appears in 1 contract
Sources: Revolving Credit Agreement (Millicom International Cellular Sa)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) fees shall cease to accrue on the unfunded unused portion of the Commitments Commitment of such Defaulting Lender pursuant to Section 2.12(a2.08(a);
(b) such Defaulting Lender shall not have the right to vote on any issue on which voting is required (other than to the extent expressly provided in Section 9.02(b)) and the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or the Supermajority Revolving Lenders have taken or may take any action hereunderhereunder (including any consent to any amendment, waiver or other modification pursuant to Section 9.05); provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of each Lender or each Lender affected thereby;
(c) if any Swingline Exposure or LC Exposure Letter of Credit Liabilities exists at the time a such Lender becomes a Defaulting Lender then:
(i) all or any part so long as no Default has occurred and is continuing, the Letter of the Swingline Exposure and LC Exposure Credit Liabilities of such Defaulting Lender shall be reallocated among the nonNon-Defaulting Lenders of the applicable Class in accordance with their respective Applicable Percentages but only to the extent (x) that the sum of all noneach such Non-Defaulting Lenders’ Revolving Exposures under such Class of Commitments plus such Defaulting Lender’s Swingline Exposure and LC Exposure under Loans plus such Class Non-Defaulting Lender’s Letter of Commitments does Credit Liabilities (after giving effect to such reallocation) would not exceed the total of all non-Defaulting Lenders’ Commitments of such Class, (y) no nonNon-Defaulting Lender’s Revolving Exposure under such Class of Commitments is increased above such Lender’s Commitment of such Class as a result thereof and (z) no Event of Default has then occurred and is continuingCommitment;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the applicable each Borrower shall within one Business Day following notice by the Administrative Agent (x) first, in the case of the U.S. Borrower, prepay such Swingline Exposure and (y) second, Cash Collateralize, Collateralize for the benefit of the applicable Issuing Bank, Lender only such Borrowers’ Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure under the applicable Class Letter of Commitments Credit Liabilities (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with above and only to the procedures set forth in extent such Defaulting Lender’s Letter of Credit Liabilities have not been Cash Collateralized pursuant to Section 2.06(k2.20(e)) for so long as such LC Exposure is Letter of Credit Liabilities are outstanding;
(iii) if a Borrower Cash Collateralizes any portion of such Defaulting Lender’s LC Exposure Letter of Credit Liabilities pursuant to clause (ii) above, such Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.12(b2.08(b) with respect to such Defaulting Lender’s LC Exposure Letter of Credit Liabilities during the period such Defaulting Lender’s LC Exposure is Letter of Credit Liabilities are Cash Collateralized;
(iv) if To the LC Exposure extent such Defaulting Lender’s Letter of Credit Liabilities are reallocated to the nonNon-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Non-Defaulting Lenders pursuant to Sections 2.12(aSection 2.08(a) and 2.12(b2.08(b) shall be adjusted in accordance with such nonNon-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 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 (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such Letter of Credit Liabilities) and letter of credit fees payable under Section 2.12(b2.08(b) with respect to such Defaulting Lender’s LC Exposure Letter of Credit Liabilities shall be payable to the applicable Issuing Bank Lenders until and to the extent that such LC Exposure Letter of Credit Liabilities is reallocated and/or Cash Collateralized; and
(dvi) so long as such Lender is a Defaulting Lender, the applicable no Issuing Bank under the applicable Facility Lender shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Letter of Credit Liabilities will be 100% covered by the Commitments of the nonNon-Defaulting Lenders and/or Cash Collateral will be provided by the applicable Borrower(s) Collateralized in accordance with Section 2.20(c2.20(c)(ii), and participating interests in any such newly made Swingline Loan or newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein). If .
(id) a Bankruptcy Event with respect to the Parent of any Lender shall occur following the Second Amendment Effective Date and for so long as such event shall continue or (ii) any Issuing Bank or the Swingline Lender has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, such Issuing Bank shall not be required to issue, amend or increase any Letter of Credit and the Swingline Lender shall not be required to fund any Swingline Loan, unless such Issuing Bank or the Swingline Lender, as the case may be, shall have entered into arrangements with the Borrowers or such Lender, satisfactory to such Issuing Bank or the Swingline Lender, as the case may be, to defease any risk in respect of such Lender hereunder. In the event that each of the Administrative Agent, the Borrowers, the applicable Borrower and each Issuing Banks and, in the case of the U.S. Facility, the Swingline Lender agrees agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and/or LC Exposure Letter of Credit Liabilities of the Lenders under the applicable Facility shall be readjusted to reflect the inclusion of such Lender▇▇▇▇▇▇’s Commitment and on the such date of such readjustment such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage.
(e) Any payment of principal, interest, or other amounts received by the Administrative 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 9.04 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’ Letter of Credit Liabilities with respect to such Defaulting Lender in accordance with Section 2.20(c); 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 Lenders’ future Letter of Credit Liabilities with respect to such Defaulting Lender with respect to future Letters of Credit issued under this Agreement, in accordance with Section 2.20(c); 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 any Issuing 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 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 Letter of Credit Liabilities 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 3.02 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and Letter of Credit Liabilities owed to, all Non-Defaulting Lenders on a pro 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 2.20(e) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
Appears in 1 contract
Sources: Credit Agreement (Consolidated Edison Co of New York Inc)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) fees shall cease to accrue on the unfunded portion of the Commitments Commitment of such Defaulting Lender pursuant to Section 2.12(a2.11(a);
(b) such Defaulting Lender shall not have the right to vote on any issue on which voting is required (other than to the extent expressly provided in Section 9.02(b)) and the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required all Lenders, Super-Majority Lenders or the Supermajority Revolving Majority Lenders have taken or may take any action hereunder;hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.02), provided that (i) any waiver, consent, amendment or modification pursuant to Section 10.02 requiring the consent of each Lender, such Lender or each affected Lender shall require the consent of such Defaulting Lender, and (ii) the Commitment of such Defaulting Lender may not be increased or extended without the consent of such Defaulting Lender.
(c) if any Swingline Exposure or LC Exposure exists at the time 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 non-Defaulting Lenders of the applicable Class in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures under such Class of Commitments plus such Defaulting Lender’s Swingline Exposure and LC Exposure under such Class of Commitments does not exceed the total of all non-Defaulting Lenders’ Commitments of such Class, and (y) no non-Defaulting Lender’s Revolving Exposure under the conditions set forth in Section 4.02 are satisfied at such Class of Commitments is increased above such Lender’s Commitment of such Class as a result thereof and (z) no Event of Default has then occurred and is continuingtime;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the applicable Borrower shall Borrowers shall, within one (1) Business Day following notice by the Administrative Agent (x) firstAgent, in the case of the U.S. Borrower, prepay such Swingline Exposure and (y) second, Cash Collateralize, cash collateralize for the benefit of the applicable Issuing Bank, such Bank only the Borrowers’ obligations corresponding to such Defaulting Lender’s LC Exposure under the applicable Class of Commitments (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.06(k2.05(j) for so long as such LC Exposure is outstanding;
(iii) if a Borrower Cash Collateralizes the Borrowers cash collateralize any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, such Borrower then the Borrowers shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.12(b2.11(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is Cash Collateralizedcash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(aSection 2.11(a) and 2.12(bSection 2.11(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither cash collateralized nor reallocated nor Cash Collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any the Issuing Bank or any Lender hereunder, all 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 Bank until and to the extent that such LC Exposure is reallocated cash collateralized and/or Cash Collateralized; andreallocated;
(d) so long as such Lender is a Defaulting Lender, the applicable Issuing Bank under the applicable Facility shall not be required to issue, amend amend, renew or increase extend any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or Cash Collateral cash collateral will be provided by the applicable Borrower(s) Borrowers in accordance with Section 2.20(c2.19(c), and participating interests in any such newly made Swingline Loan or newly issued or increased Letter of Credit shall be allocated among nonNon-Defaulting Lenders in a manner consistent with Section 2.20(c)(i2.19(c)(i) (and such Defaulting Lender Lenders shall not participate therein); and
(e) the Borrowers shall have the right, to the extent permitted by applicable law, to set-off any amounts owed to it or any of its Restricted Subsidiaries by any Defaulting Lender in respect of deposit account liabilities against amounts due by the Borrowers to such Defaulting Lender under this Agreement; provided that the amount of such set-off shall not exceed the amount of such Defaulting Lender’s Credit Exposure and any accrued and unpaid interest with respect thereto. If (i) a Bankruptcy Event with respect to the a Parent of any Lender shall occur following the Second Amendment Effective Date date hereof and for so long as such event shall continue or (ii) any the Issuing Bank or the Swingline Lender has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, such the Issuing Bank shall not be required to issue, amend amend, or increase any Letter of Credit and the Swingline Lender shall not be required to fund any Swingline LoanCredit, unless such the Issuing Bank or the Swingline Lender, as the case may be, shall have entered into arrangements with the Borrowers or such Lender, satisfactory to such the Issuing Bank or the Swingline Lender, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that each of the Administrative Agent, the Borrowers, and the applicable Issuing Banks and, in the case of the U.S. Facility, the Swingline Lender agrees Bank each agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and/or LC Exposure of the Lenders under the applicable Facility shall be readjusted to reflect the inclusion of such Lender’s Commitment and on the date of such readjustment date, such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage.
Appears in 1 contract
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) fees pursuant to Section 2.04(a) or any separately agreed undrawn commitment fees in respect of any Increased Commitment shall cease to accrue on the unfunded portion of the Commitments Commitment of such Defaulting Lender pursuant to Section 2.12(a);Lender; and
(b) such Defaulting Lender and all of its Term Loans and Commitments, as applicable, shall not have the right to vote on any issue on which voting is required (other than to the extent expressly provided in Section 9.02(b)) and the Commitment and Revolving Exposure be excluded for purposes of such Defaulting Lender shall not be included in determining whether the Required Lenders or the Supermajority Revolving Lenders Super-Majority Lenders, as applicable, have taken or may take any action hereunder;
hereunder (cincluding any consent to any amendment, waiver or other modification pursuant to Section 8.01); provided, that this clause (b) if any Swingline Exposure or LC Exposure exists at shall not apply to the time a Lender becomes vote of 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 of the applicable Class in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Exposures under such Class of Commitments plus such Defaulting Lender’s Swingline Exposure and LC Exposure under such Class of Commitments does not exceed the total of all non-Defaulting Lenders’ Commitments of such Class, (y) no non-Defaulting Lender’s Revolving Exposure under such Class of Commitments is increased above such Lender’s Commitment of such Class as a result thereof and (z) no Event of Default has then occurred and is continuing;
(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 (x) first, in the case of the U.S. Borroweran amendment, prepay such Swingline Exposure and (y) second, Cash Collateralize, for the benefit of the applicable Issuing Bank, such Borrowers’ obligations corresponding to such Defaulting Lender’s LC Exposure under the applicable Class of Commitments (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth waiver or other modification described in Section 2.06(k) 8.01 for so long as such LC Exposure which the consent of all Lenders or each Lender directly and adversely affected thereby is outstanding;
(iii) if a Borrower Cash Collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, such Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is Cash Collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(b) shall be adjusted in accordance with such non-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 Lender hereunder, all letter of credit fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank until such LC Exposure is reallocated and/or Cash Collateralized; and
(d) so long as such Lender is a Defaulting Lender, the applicable Issuing Bank under the applicable Facility shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or Cash Collateral will be provided by the applicable Borrower(s) in accordance with Section 2.20(c), and participating interests in any such newly made Swingline Loan or newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to the Parent of any Lender shall occur following the Second Amendment Effective Date and for so long as such event shall continue or (ii) any Issuing Bank or the Swingline Lender has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, such Issuing Bank shall not be required to issue, amend or increase any Letter of Credit and the Swingline Lender shall not be required to fund any Swingline Loan, unless such Issuing Bank or the Swingline Lender, as the case may be, shall have entered into arrangements with the Borrowers or such Lender, satisfactory to such Issuing Bank or the Swingline Lender, as the case may be, to defease any risk in respect of such Lender hereunderrequired. In the event that the Agent and the Borrower each of the Administrative Agent, the Borrowers, the applicable Issuing Banks and, in the case of the U.S. Facility, the Swingline Lender agrees agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and/or LC Exposure of the Lenders under the applicable Facility shall be readjusted to reflect the inclusion of on such Lender’s Commitment and on the date of such readjustment such Lender shall purchase at par such of the Term Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Term Loans in accordance with its Applicable PercentagePro Rata 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 the Borrower while such Lender was a Defaulting Lender; and provided further that no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim the Borrower, the Agent or any other Lender may have arising from such Lender’s having been a Defaulting Lender.
Appears in 1 contract
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) fees shall cease to accrue on the unfunded portion of the Commitments Revolving Credit Commitment of such Defaulting Lender pursuant to Section 2.12(a)3.04(b) hereto;
(b) such Defaulting Lender shall not have the right to vote on any issue on which voting is required (other than to the extent expressly provided in Section 9.02(b)) Commitments and the Commitment and Revolving Exposure Loans of such Defaulting Lender shall not be included in determining whether the Required Lenders or the Supermajority Revolving Lenders have taken or may take any action hereunderhereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.04; provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender affected thereby;
(c) if any Swingline Exposure or LC Exposure exists at the time a such Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders of the applicable Class in accordance with their respective Applicable Percentages Commitment Proportion but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures under such Class of Commitments plus such Defaulting Lender’s Swingline Exposure and LC Exposure under such Class of Commitments does not exceed the total of all non-Defaulting Lenders’ Commitments of such Class, (y) no non-Defaulting Lender’s Revolving Exposure under such Class of Commitments is increased above such Lender’s Commitment of such Class as a result thereof and (z) no Event of Default has then occurred and is continuingCredit Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the applicable Borrower Companies shall within one Business Day following notice by the Administrative Agent (x) first, in the case of the U.S. Borrower, prepay such Swingline Exposure and (y) second, Cash Collateralize, cash collateralize for the benefit of the applicable Issuing Bank, such BorrowersLender only the Companies’ obligations corresponding to such Defaulting Lender’s LC Exposure under the applicable Class of Commitments (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.06(k) 8.01 for so long as such LC Exposure is outstanding;
(iii) if a Borrower Cash Collateralizes the Companies cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, such Borrower the Companies shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.12(b3.04(c) or (d) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is Cash Collateralizedcash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(bSection 3.04(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable PercentagesCommitment Proportion; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor Cash Collateralized cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any the Issuing Bank Lender or any other Lender hereunder, all unused fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and and letter of credit fees payable, each payable under pursuant to Section 2.12(b) 3.04 above with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank Lender until and to the extent that such LC Exposure is reallocated and/or Cash Collateralizedcash collateralized; and
(d) so long as such Lender is a Defaulting Lender, the applicable Issuing Bank under the applicable Facility Lender shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Lenders and/or Cash Collateral cash collateral will be provided by the applicable Borrower(s) Companies in accordance with Section 2.20(c3.12(c), and participating interests in any such newly made Swingline Loan or newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i3.12(c)(i) (and such Defaulting Lender shall not participate therein). If .
(i) a Bankruptcy Event with respect to the a Lender Parent of any Lender shall occur following the Second Amendment Effective Date date hereof and for so long as such event shall continue or (ii) any the Issuing Bank or the Swingline Lender has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, such the Issuing Bank Lender shall not be required to issue, amend or increase any Letter of Credit and the Swingline Lender shall not be required to fund any Swingline LoanCredit, unless such the Issuing Bank or the Swingline Lender, as the case may be, Lender shall have entered into arrangements with the Borrowers Companies or such Lender, satisfactory to such the Issuing Bank or the Swingline Lender, as the case may be, Lender to defease any risk to it in respect of such Lender hereunder. In the event that each of the Administrative Agent, the Borrowers, Companies and the applicable Issuing Banks and, in the case of the U.S. Facility, the Swingline Lender each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and/or LC Exposure of the Lenders under the applicable Facility shall be readjusted to reflect the inclusion of such Lender’s Commitment and on the such date of such readjustment such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable PercentageCommitment Proportion.
Appears in 1 contract
Sources: Credit Agreement (Aceto Corp)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) fees shall cease to accrue on the unfunded portion of the Commitments Commitment of such Defaulting Lender pursuant to Section 2.12(a)2.3;
(b) such Defaulting Lender shall not have the right to vote on any issue on which voting is required (other than to the extent expressly provided in Section 9.02(b)) and the Commitment and Revolving Exposure Extensions of Credit of such Defaulting Lender shall not be included in determining whether the Required Lenders or the Supermajority Revolving Lenders have taken or may take any action hereunderhereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.1); provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender affected thereby;
(c) if any Swingline Exposure or LC L/C Exposure exists at the time a such 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 non-Defaulting Lenders of the applicable Class in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Exposures under such Class Extensions of Commitments Credit plus such Defaulting Lender’s Swingline L/C Exposure and LC Exposure under such Class of Commitments does not exceed the total of all non-Defaulting Lenders’ Commitments of such Class, and (y) no non-Defaulting Lender’s Revolving Exposure under Extensions of Credit would exceed such Class of Commitments is increased above such non-Defaulting Lender’s Commitment of such Class as a result thereof and (z) no Event of Default has then occurred and is continuingCommitment;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the applicable Borrower shall shall, within one Business Day following notice by the Administrative Agent (x) firstAgent, in the case of the U.S. Borrower, prepay such Swingline Exposure and (y) second, Cash Collateralize, Collateralize for the benefit of the applicable Issuing Bank, such Borrowers’ Lender only the Borrower’s obligations corresponding to such Defaulting Lender’s LC L/C Exposure under the applicable Class of Commitments (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.06(k) 8 for so long as such LC L/C Exposure is outstanding;
(iii) if a the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s LC L/C Exposure pursuant to clause (ii) above, such the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.12(b3.3(a) with respect to such Defaulting Lender’s LC L/C Exposure during the period such Defaulting Lender’s LC L/C Exposure is Cash Collateralizedcash collateralized;
(iv) if the LC L/C Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) Section 2.3 and 2.12(bSection 3.3(a) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable 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 letter of credit 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 applicable Issuing Bank Lender until and to the extent that such LC L/C Exposure is reallocated and/or Cash Collateralized; and
(d) so long as such Lender is a Defaulting Lender, the applicable Issuing Bank under the applicable Facility Lender shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding L/C Exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or Cash Collateral will be provided Collateralized by the applicable Borrower(s) Borrower in accordance with Section 2.20(c2.18(c), and participating interests in any such newly made Swingline Loan or newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i2.18(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to the a Lender Parent of any Lender shall occur following the Second Amendment Effective Date date hereof and for so long as such event shall continue or (ii) any the Issuing Bank or the Swingline Lender has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, such the Issuing Bank Lender shall not be required to issue, amend or increase any Letter of Credit and the Swingline Lender shall not be required to fund any Swingline LoanCredit, unless such the Issuing Bank or the Swingline Lender, as the case may be, Lender shall have entered into arrangements with the Borrowers Borrower or such Lender, satisfactory to such the Issuing Bank or the Swingline Lender, as the case may be, Lender to defease any risk to it in respect of such Lender hereunder. In the event that each of the Administrative Agent, the Borrowers, Borrower and the applicable Issuing Banks and, in the case of the U.S. Facility, the Swingline Lender each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and/or LC L/C Exposure of the Lenders under the applicable Facility shall be readjusted to reflect the inclusion of such Lender’s Commitment and on the such date of such readjustment such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage.
Appears in 1 contract
Sources: Credit Agreement (Marriott Vacations Worldwide Corp)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) fees shall cease to accrue on the unfunded portion of the Commitments unused Commitment of such Defaulting Lender pursuant to Section 2.12(a)2.3;
(b) such Defaulting Lender shall not have the right to vote on any issue on which voting is required (other than to the extent expressly provided in Section 9.02(b)) and the Revolving Commitment and Revolving Exposure Extensions of Credit of such Defaulting Lender shall not be included in determining whether the Required Lenders or the Supermajority Revolving Lenders have taken or may take any action hereunderhereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.1); provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender affected thereby;
(c) if any Swingline Exposure or LC Exposure exists L/C Obligations exist at the time a such Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure L/C Obligations of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders of the applicable Class in accordance with their respective Applicable Percentages Revolving Percentage but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Exposures under such Class Extensions of Commitments plus such Defaulting Lender’s Swingline Exposure and LC Exposure under such Class of Commitments Credit does not exceed the total of all non-Defaulting Lenders’ Revolving Commitments (any such excess, the “Excess Extensions of such Class, (y) no non-Defaulting Lender’s Revolving Exposure under such Class of Commitments is increased above such Lender’s Commitment of such Class as a result thereof and (z) no Event of Default has then occurred and is continuingCredit”);
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the applicable Borrower shall shall, within one Business Day following notice by the Administrative Agent (x) firstAgent, in the case of the U.S. Borrower, prepay such Swingline Exposure and (y) second, Cash Collateralize, cash collateralize for the benefit of the applicable Issuing Bank, such Borrowers’ Lenders only the Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure under the applicable Class of Commitments L/C Obligations (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.06(k) for so long as such LC Exposure is L/C Obligations are outstanding, in each case only to the extent of the Excess Extensions of Credit;
(iii) if a the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s LC Exposure L/C Obligations pursuant to clause (ii) above, such the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.12(b2.7(a) with respect to such Defaulting Lender’s LC Exposure L/C Obligations during the period such Defaulting Lender’s LC Exposure is Cash CollateralizedL/C Obligations are cash collateralized;
(iv) if the LC Exposure L/C Obligations of the non-Defaulting Lenders is are reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) Section 2.3 and 2.12(b) Section 2.7 shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Revolving Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure L/C Obligations is neither reallocated nor Cash Collateralized cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank Lender or any other Lender hereunder, all and letter of credit fees payable under Section 2.12(b) 2.7 with respect to such Defaulting Lender’s LC Exposure L/C Obligations shall be payable to the applicable Issuing Bank Lenders until and to the extent that such LC Exposure is L/C Obligations are reallocated and/or Cash Collateralizedcash collateralized; and
(d) so long as such Lender is a Defaulting Lender, the applicable no Issuing Bank under the applicable Facility Lender shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding L/C Obligations will be 100% covered by the Revolving Commitments of the non-Defaulting Lenders and/or Cash Collateral cash collateral will be provided by the applicable Borrower(s) Borrower in accordance with Section 2.20(c3.14(c), and participating interests in any such newly made Swingline Loan or newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i3.14(c)(i) (and such Defaulting Lender shall not participate therein).
(e) Notwithstanding anything to the contrary in Section 3.7, the Borrower may (x) terminate the unused amount of the Revolving Commitment of a Defaulting Lender or (y) repay the principal of and interest on the Revolving Loans then held by the Defaulting Lender, in each case upon not less than three Business Days’ prior notice to the Administrative Agent (which will promptly notify the Lenders thereof); provided that the Revolving Commitments shall be permanently reduced by the principal amount of any such repayment; provided further, such termination or repayment will not be deemed to be a waiver or release of any claim the Borrower, the Administrative Agent, any Issuing Lender or any Lender may have against such Defaulting Lender. If (i) a Bankruptcy Event or Bail-In Action with respect to the Parent of any Lender Parent shall occur following the Second Amendment Effective Date date hereof and for so long as such event shall continue or (ii) any Issuing Bank or the Swingline Lender has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, such Issuing Bank Lender shall not be required to issue, amend or increase any Letter of Credit and the Swingline Lender shall not be required to fund any Swingline LoanCredit, unless such Issuing Bank or the Swingline Lender, as the case may be, Lender shall have entered into arrangements with the Borrowers Borrower or such Lender, satisfactory to such Issuing Bank or the Swingline Lender, as the case may be, Lender to defease any risk to it in respect of such Lender hereunder. In the event that each of the Administrative Agent, the Borrowers, Borrower and the applicable Issuing Banks and, in the case of the U.S. Facility, the Swingline Lender agrees Lenders each agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and/or LC Exposure L/C Obligations of the Lenders under the applicable Facility shall be readjusted to reflect the inclusion of such Lender▇▇▇▇▇▇’s Revolving Commitment and on the date of such readjustment such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Revolving Percentage.
Appears in 1 contract
Defaulting Lenders. (a) Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(ai) fees shall cease to accrue on the unfunded portion of the Commitments Commitment of such Defaulting Lender pursuant to Section 2.12(a);
(bii) such Defaulting Lender shall not have the right to vote on any issue on which voting is required (other than to the extent expressly provided in Section 9.02(b)) and the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or the Supermajority Revolving Lenders have taken or may take any action hereunderhereunder (including any consent to any amendment, waiver or other modification pursuant to Section 9.02 or any consent to an extension of the Maturity Date pursuant to Section 2.21); provided that in no event shall (A) such Defaulting Lender’s Commitment be increased or extended without its consent and (B) the principal amount of, or interest or fees payable on, Loans or LC Disbursements be reduced or excused or the scheduled date of payment be postponed as to such Defaulting Lender without such Defaulting Lender’s consent (except that fees shall be cease to accrue for the account of such Defaulting Lender to the extent specified in this Section 2.22 without such Defaulting Lender’s consent);
(ciii) if any Swingline Exposure or LC Exposure exists at the time a Lender becomes a Defaulting Lender then:
(iA) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the Lenders that are not Defaulting Lenders (for purposes of this Section 2.22, the “non-Defaulting Lenders of the applicable Class Lenders”) in accordance with their respective Applicable Percentages but only to the extent that (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures under such Class of Commitments plus such Defaulting Lender’s Swingline Exposure and plus such Defaulting Lender’s LC Exposure under such Class of Commitments does not exceed the total of all non-Defaulting Lenders’ Commitments of such Class, and (y) no non-Defaulting Lender’s Revolving Exposure under the conditions set forth in Section 4.03 are satisfied at such Class of Commitments is increased above such Lender’s Commitment of such Class as a result thereof and (z) no Event of Default has then occurred and is continuingtime;
(iiB) if the reallocation described in clause (iiii)(A) above cannot, or can only partially, be effected, the applicable Borrower shall within one Business Day following notice by the Administrative Agent (x) first, in the case of the U.S. Borrower, prepay such Swingline Exposure and (y) second, Cash Collateralize, for the benefit of the applicable Issuing Bank, such Borrowers’ obligations corresponding to such Defaulting Lender’s LC Swingline Exposure under the applicable Class of Commitments (after giving effect to any partial reallocation pursuant to clause (iiii)(A) above) and (y) second, cash collateralize, for the benefit of the Issuing Banks, the Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (iii)(A) above) in accordance with the procedures set forth in Section 2.06(k2.06(j) for so long as such LC Exposure is outstanding;
(iiiC) if a the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (iiiii)(B) above, such the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is Cash Collateralizedcash collateralized;
(ivD) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (iiii)(A) above, then the fees payable to the such non-Defaulting Lenders pursuant to Sections Section 2.12(a) and Section 2.12(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable PercentagesLC Exposure after giving effect to such reallocation and, to the extent of such reallocation, fees under Section 2.12(b) shall no longer accrue for the benefit of such Defaulting Lender; and
(vE) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor Cash Collateralized cash collateralized pursuant to clause (iiii)(A) or clause (iiiii)(B) above, then, without prejudice to any rights or remedies of any Issuing Bank or any non-Defaulting Lender hereunder, all letter of credit fees that otherwise would have been payable under to such Defaulting Lender pursuant to Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank Banks (ratably in proportion to the amount of Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or Cash Collateralizedcash collateralized; and
(div) so long as such a Lender is a Defaulting Lender, the applicable Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Bank under the applicable Facility shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure and such Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or Cash Collateral cash collateral will be provided by the applicable Borrower(s) Borrower in accordance with Section 2.20(c2.22(a)(iii), and participating interests in any such newly made Swingline Loan or any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i2.22(a)(iii)(A) (and such Defaulting Lender shall not participate therein). If For the avoidance of doubt, (iA) a Bankruptcy Event with respect to Letters of Credit requested at a time when a Lender is a Defaulting Lender, to the Parent extent such Defaulting Lender’s obligations under Section 2.06 are reallocated to other non- Defaulting Lenders in accordance with such non-Defaulting Lenders’ respective Applicable Percentages (to the extent, after giving effect to the issuance of any such Letter of Credit, that the sum of all non-Defaulting Lenders’ Credit Exposures plus such Defaulting Lender’s Swingline Exposure plus such Defaulting Lender’s LC Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments), the existence of such Defaulting Lender shall occur following not affect the Second Amendment Effective Date and for so long as such event shall continue or (ii) obligation of any Issuing Bank to issue Letters of Credit up to the LC Sublimit, as reduced by such Defaulting Lender’s Applicable Percentage (without taking into consideration any reallocation described in this Section 2.22) of the LC Sublimit or (B) with respect to Swingline Loans requested at a time when a Lender is a Defaulting Lender, to the extent such Defaulting Lender’s obligations under Section 2.03 are reallocated to other non-Defaulting Lenders in accordance with such non-Defaulting Lenders’ respective Applicable Percentages (to the extent, after giving effect to such Swingline Loan, that the sum of all non-Defaulting Lenders’ Credit Exposures plus such Defaulting Lender’s Swingline Exposure plus such Defaulting Lender’s LC Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments), the existence of such Defaulting Lender shall not affect the obligation of the Swingline Lender has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, such Issuing Bank shall not be required make Swingline Loans up to issue, amend or increase any Letter of Credit and the Swingline Lender shall not be required to fund any Swingline Loan, unless such Issuing Bank or the Swingline LenderSublimit, as the case may be, shall have entered reduced by such Defaulting Lender’s Applicable Percentage (without taking into arrangements with the Borrowers or such Lender, satisfactory to such Issuing Bank or the Swingline Lender, as the case may be, to defease consideration any risk reallocation described in respect of such Lender hereunder. this Section 2.22).
(b) In the event that each of the Administrative Agent, the Borrowers, the applicable Issuing Banks and, in the case of the U.S. FacilityBorrower, the Swingline Lender and each Issuing Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and/or and LC Exposure of the Lenders under the applicable Facility shall be readjusted to reflect the inclusion of such Lender’s Commitment and on the such date of such readjustment such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while 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 having been a Defaulting Lender.
Appears in 1 contract
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) fees shall cease to accrue on the unfunded portion of the Commitments Commitment of such Defaulting Lender pursuant to Section 2.12(a3.05(a);
(b) such Defaulting Lender shall not have the right to vote on any issue on which voting is required (other than to the extent expressly provided in Section 9.02(b)) and the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Majority Lenders or the Supermajority Revolving Required Lenders have taken or may take any action hereunderhereunder (including any consent to any amendment, waiver or other modification pursuant to Section 12.02); provided, however, that, except as otherwise provided in Section 12.02, 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 such Lender or each Lender directly affected thereby;
(c) if any Swingline LC Exposure or LC Swingline Exposure exists at the time a such Lender becomes a Defaulting Lender Lender, then:
(i) all or any part of the Swingline LC Exposure and LC Swingline Exposure of such Defaulting Lender shall be reallocated (effective as of the date such Lender becomes a Defaulting Lender) among the non-Defaulting Lenders of the applicable Class in accordance with their respective Applicable Percentages (for the purposes of such reallocation, such Defaulting Lender’s Maximum Credit Amount shall be disregarded in determining the non-Defaulting Lenders’ Applicable Percentage), but only to the extent that (xA) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures under such Class of Commitments plus such Defaulting Lender’s Swingline Exposure and LC Exposure under such Class of Commitments does not exceed the total of all non-Defaulting Lenders’ Commitments of such ClassCommitments, (yB) after giving effect to any such reallocation, no non-Defaulting Lender’s Revolving Credit Exposure under shall exceed such Class of Commitments is increased above such non-Defaulting Lender’s Commitment of such Class as a result thereof and (zC) no Event of Default has then occurred and is continuingcontinuing at such time; provided, however, 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 applicable Borrower shall shall, within one (1) Business Day following notice by the Administrative Agent Agent, (x) first, prepay Swingline Loans in an amount equal to the case of the U.S. Borrower, prepay such Swingline Lender’s Fronting Exposure and (y) second, Cash Collateralize, Collateralize for the benefit of the applicable Issuing Bank, such Borrowers’ Bank only the Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure under the applicable Class of Commitments (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.06(k2.08(k) for so long as such LC Exposure is outstanding;
(iii) if a the Borrower Cash Collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, such the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.12(b3.05(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is Cash Collateralized;
(iv) if all or any portion of the LC Exposure of the non-such Defaulting Lenders Lender is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(aSection 3.05(a) and 2.12(bSection 3.05(b) shall be adjusted in accordance with such the non-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 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 applicable Issuing Bank until and to the extent that such LC Exposure is reallocated and/or Cash Collateralized; and
(d) so long as such Lender is a Defaulting Lender, (i) the applicable Swingline Lender shall not be required to fund any Swingline Loans unless it is satisfied that it will have no Fronting Exposure after giving effect to such Swingline Loans and (ii) the Issuing Bank under the applicable Facility shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or Cash Collateral will be provided by the applicable Borrower(s) Borrower in accordance with Section 2.20(c4.05(c), and participating interests in any such newly made Swingline Loan or newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i4.05(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to the Parent of any Lender shall occur following the Second Amendment Effective Date and for so long as such event shall continue or (ii) any Issuing Bank or the Swingline Lender has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, such Issuing Bank shall not be required to issue, amend or increase any Letter of Credit and the Swingline Lender shall not be required to fund any Swingline Loan, unless such Issuing Bank or the Swingline Lender, as the case may be, shall have entered into arrangements with the Borrowers or such Lender, satisfactory to such Issuing Bank or the Swingline Lender, as the case may be, to defease any risk in respect of such Lender hereunder. In the event that each of the Administrative Agent, the Borrowers, the applicable Issuing Banks and, in the case of the U.S. Facility, the Swingline Lender agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and/or LC Exposure of the Lenders under the applicable Facility shall be readjusted to reflect the inclusion of such Lender’s Commitment and on the date of such readjustment such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage.
Appears in 1 contract
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion of the Commitments Commitment of such Defaulting Lender pursuant to Section 2.12(a2.10(a);
(b) such Defaulting Lender shall not have the right to vote on any issue on which voting is required (other than to the extent expressly provided in Section 9.02(b)) and the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or the Supermajority Revolving Lenders have taken or may take any action hereunderhereunder (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided, that, except as otherwise provided in Section 9.02, this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender directly affected thereby;
(c) if any Swingline Exposure or LC Exposure exists at the time a such 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 non-Defaulting Lenders of the applicable Class that are Revolving Lenders in accordance with their respective Applicable Percentages (for the purposes of such reallocation, such Defaulting Lender’s Revolving Commitment shall be disregarded in determining the non-Defaulting Lenders’ respective Applicable Percentages), but only to the extent that (xA) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures under such Class of Commitments plus such Defaulting Lender’s Swingline Exposure and LC Exposure under such Class of Commitments does not exceed the total of all non-Defaulting Lenders’ Commitments of such ClassRevolving Commitments, (yB) after giving effect to any such reallocation, no non-Defaulting Lender’s Revolving Credit Exposure under shall exceed such Class of Commitments is increased above such non-Defaulting Lender’s Revolving Commitment of such Class as a result thereof and (zC) no Default or Event of Default has then occurred and is continuingcontinuing at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the applicable Borrower shall shall, within one three (3) Business Day Days following written notice by the Administrative Agent (x) firstAgent, in the case of the U.S. Borrower, prepay such Swingline Exposure and (y) second, Cash Collateralizecash collateralize, for the benefit of the applicable Issuing BankBanks, such Borrowers’ the Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure under the applicable Class of Commitments (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.06(k2.04(j) for so long as such Defaulting Lender’s LC Exposure is outstanding;
(iii) if a the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, such 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 Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is Cash Collateralizedcash collateralized;
(iv) if any portion of the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Revolving Lenders pursuant to Sections 2.12(aSection 2.10(a) and 2.12(bSection 2.10(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable PercentagesPercentages 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 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 letter of credit 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 Bank Banks, ratably based on the portion of such LC Exposure attributable to Letters of Credit issued by each such Issuing Bank, until and to the extent that such LC Exposure is reallocated and/or Cash Collateralizedcash collateralized pursuant to clause (i) or (ii) above; and
(d) so long as such Lender is a Defaulting Lender, the applicable no Issuing Bank under the applicable Facility shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or Cash Collateral cash collateral will be provided by the applicable Borrower(s) Borrower in accordance with Section 2.20(c2.18(c), and participating interests in any such newly made Swingline Loan or newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i2.18(c)(i) (and such Defaulting Lender shall not participate therein). If .
(i) a Bankruptcy Event or a Bail-In Action with respect to the a Lender Parent of any Lender shall occur following the Second Amendment Effective Date date hereof and for so long as such event shall continue or (ii) any Issuing Bank or the Swingline 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, such no Issuing Bank shall not be required to issue, amend or increase any Letter of Credit and the Swingline Lender shall not be required to fund any Swingline LoanCredit, unless such Issuing Bank or the Swingline Lender, as the case may be, shall have entered into arrangements with the Borrowers Borrower or such Lender, satisfactory to such Issuing Bank or the Swingline Lender, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that each of the Administrative Agent, the BorrowersBorrower, the applicable each Issuing Banks and, Bank agree in the case of the U.S. Facility, the Swingline Lender agrees writing that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and/or LC Exposure Exposures of the Revolving Lenders under the applicable Facility shall be readjusted to reflect the inclusion of such Lender’s Commitment Revolving Commitment, and on the such date of such readjustment such Lender shall purchase at par such of the Revolving Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage. The rights and remedies against, and with respect to, a Defaulting Lender under this Section 2.18 are in addition to, and cumulative and not in limitation of, all other rights and remedies that the Administrative Agent and each Lender, each Issuing Bank, the Borrower or any other Loan Party may at any time have against, or with respect to, such Defaulting Lender.
Appears in 1 contract
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) fees shall cease to accrue on the unfunded portion of the Commitments Commitment of such Defaulting Lender pursuant to Section 2.12(a2.11(a);
(b) such Defaulting Lender shall not have the right to vote on any issue on which voting is required (other than to the extent expressly provided in Section 9.02(b)) and the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required all Lenders or the Supermajority Revolving Required Lenders have taken or may take any action hereunderhereunder (including any consent to any amendment or waiver pursuant to Section 9.02), provided that (i) such Defaulting Lender’s Commitment may not be increased or extended without its consent and (ii) the principal amount of, or interest or fees payable on, such Defaulting Lender’s Loans or participations in LC Disbursements may not be reduced or excused or the scheduled date of payment may not be postponed as to such Defaulting Lender without such Defaulting Lender’s consent;
(c) if any Swingline Exposure or LC Exposure exists at the time a Lender becomes a Defaulting Lender then:
(i) all or any part of the such Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders of the applicable Class in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures under such Class of Commitments plus such Defaulting Lender’s Swingline Exposure and LC Exposure under such Class of Commitments does not exceed the total of all non-Defaulting Lenders’ Commitments of such Class, (y) it being understood that in no event shall any non-Defaulting Lender’s Revolving Credit Exposure under such Class of Commitments is increased above exceed such Lender’s Commitment of such Class as a result thereof of such reallocation) and (zy) no Event of Default has then occurred and is continuingthe 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 applicable Borrower Borrowers or the Account Parties shall within one two Business Day Days following notice by the Administrative Agent (x) first, in the case of the U.S. Borrower, prepay such Swingline Exposure and (y) second, Cash Collateralizecash collateralize (or, for the benefit of the if approved by each applicable Issuing BankBank in its sole discretion, such Borrowers’ obligations corresponding to otherwise provide credit support for) such Defaulting Lender’s LC Exposure under the applicable Class of Commitments (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.06(k2.05(j) for so long as such LC Exposure is outstanding;
(iii) if a Borrower Cash Collateralizes the Borrowers or the Account Parties cash collateralize, or otherwise provide credit support for, any portion of such Defaulting Lender’s LC Exposure pursuant to clause this paragraph (ii) abovec), such Borrower the Borrowers shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.12(b2.11(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is Cash Collateralizedcash collateralized or otherwise has credit support provided therefor;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause this paragraph (i) abovec), then the fees payable to the Lenders pursuant to Sections 2.12(aSection 2.11(a) and 2.12(bSection 2.11(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither cash collateralized, nor otherwise has credit support provided therefor nor is reallocated nor Cash Collateralized pursuant to clause this paragraph (i) or (ii) abovec), then, without prejudice to any rights or remedies of any the Issuing Bank or any Lender hereunder, all letter Letter of credit 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 Bank until such LC Exposure is reallocated cash collateralized, otherwise has credit support provided therefor and/or Cash Collateralized; andis reallocated;
(d) so long as such any Lender is a Defaulting Lender, the applicable Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Bank under the applicable Facility shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or Cash Collateral cash collateral (or other credit support, if approved by each applicable Issuing Bank in its sole discretion) will be provided by the applicable Borrower(s) Borrowers or the Account Parties in accordance with Section 2.20(c2.21(c), and participating interests in any such newly made Swingline Loan or newly issued or increased Letter of Credit or newly made Swingline Loan shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i2.21(c)(i) (and such Defaulting Lender Lenders shall not participate therein). If ; and
(e) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.17(c), but excluding Section 2.18(b)) shall, in lieu of being distributed to such Defaulting Lender, be retained by the Administrative Agent in a segregated account (which may be invested as requested by the Parent Borrower, at the Parent Borrower’s risk and expense, subject to approval by the Administrative Agent) and, subject to any applicable requirements of law, be applied at such time or times as may be determined by the Administrative Agent (i) a Bankruptcy Event with respect first, to the Parent payment of any amounts owing by such Defaulting Lender shall occur following to the Second Amendment Effective Date and for so long as such event shall continue or Administrative Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to any Issuing Bank or the Swingline Lender hereunder, (iii) third, as the Parent Borrower may request (so long as no Default has occurred and is continuing) to the funding of any Loan or the funding or cash collateralization of any participating interest in any Swingline Loan or Letter of Credit in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement (such amounts to be determined by the Administrative Agent in consultation with the Parent Borrower), (iv) fourth, if so determined by the Administrative Agent and the Borrowers or the Account Parties, held in such account as cash collateral for future funding obligations of the Defaulting Lender under this Agreement, (v) fifth, pro rata, to the payment of any amounts owing to the Borrowers, the Account Parties or the Lenders as a good faith belief that result of any judgment of a court of competent jurisdiction obtained by the Borrowers, the Account Parties or any Lender has defaulted in fulfilling against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under one or more other agreements in which such Lender commits to extend creditthis Agreement and (vi) sixth, such Issuing Bank shall not be required to issue, amend or increase any Letter of Credit and the Swingline Lender shall not be required to fund any Swingline Loan, unless such Issuing Bank or the Swingline Lender, as the case may be, shall have entered into arrangements with the Borrowers or such Lender, satisfactory to such Issuing Bank Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is (x) a prepayment of the Swingline Lender, as the case may be, to defease principal amount of any risk Loans or reimbursement obligations in respect of LC Disbursements which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 4.02 are satisfied, such 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 each of the Administrative Agent, the Borrowers, the applicable Account Parties, the Issuing Banks and, in the case of the U.S. Facility, Bank and the Swingline Lender each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and/or and LC Exposure of the Lenders under the applicable Facility shall be readjusted to reflect the inclusion of such Lender’s Commitment and on the such date of such readjustment such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage. For the avoidance of doubt, no adjustments will be made retroactively with respect to fees that ceased to accrue pursuant to clause (a) above while such Lender was a Defaulting Lender or payments that were allocated pursuant to clause (e) above while such Lender was a Defaulting Lender.
Appears in 1 contract
Sources: Credit Agreement (J C Penney Co Inc)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) fees shall cease to accrue on the unfunded portion of the Commitments Commitment of such Defaulting Lender pursuant to Section 2.12(a)2.11;
(b) such Defaulting Lender shall not have the right to vote on any issue on which voting is required (other than to the extent expressly provided in Section 9.02(b)) and the Commitment and Revolving Exposure Pro Rata Outstandings of such Defaulting Lender shall not be included in determining whether the Required all Lenders or the Supermajority Revolving Required Lenders have taken or may take any action hereunderhereunder (including any consent to any amendment or waiver pursuant to Section 11.1), provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lender;
(c) if any Swingline Exposure Swing Loans shall be outstanding or LC Exposure exists any L/C Obligations shall exist at the time a Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure unfunded participations in and LC Exposure of commitments with respect to such Defaulting Lender Swing Loans or L/C Obligations shall be reallocated among the non-Defaulting Lenders of the applicable Class in accordance with their respective Applicable Percentages Pro Rata Shares but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Exposures under such Class of Commitments Pro Rata Outstandings and participations in and commitments with respect to Swing Loans plus such Defaulting Lender’s Swingline Exposure participations in and LC Exposure under such Class of Commitments commitments with respect to Swing Loans and L/C Obligations does not exceed the total of all non-Defaulting Lenders’ Lender’s Commitments of such Class, and (y) no non-Defaulting Lender’s Revolving Exposure under the conditions set forth in Article III are satisfied at such Class time; provided, that the fees payable to the Lenders with respect to Letters of Commitments is increased above Credit shall be determined taking into account such Lender’s Commitment of such Class as a result thereof and (z) no Event of Default has then occurred and is continuing;reallocation.
(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 (x) first, in prepay the case of the U.S. Borrower, prepay such Swingline Exposure outstanding Swing Loans that were not reallocated and (y) second, Cash Collateralize, for the benefit of the applicable Issuing Bank, such Borrowers’ obligations corresponding to cash collateralize such Defaulting Lender’s LC Exposure under Pro Rata Share of the applicable Class of Commitments (after giving effect to any partial reallocation pursuant to clause (i) above) L/C Obligations in accordance with the procedures set forth in Section 2.06(k) 9.3 for so long as such LC Exposure is L/C Obligations are outstanding;
(iii) if a the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s LC Exposure Pro Rata Share of the L/C Obligations pursuant to clause (ii) above, such the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.12(b2.11(b) with respect to such Defaulting Lender’s LC Exposure Pro Rata Share of L/C Obligations during the period such Defaulting Lender’s LC Exposure Pro Rata Share of L/C Obligations is Cash Collateralized;cash collateralized; and
(iv) if the LC Exposure any Defaulting Lender’s Pro Rata Share of the non-Defaulting Lenders L/C Obligations 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 in accordance with such non-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 the L/C Issuer or any Lender hereunder, all letter of credit fees payable under Section 2.12(b2.11(b) with respect to such Defaulting Lender’s LC Exposure Pro Rata Share of L/C Obligations shall be payable to the applicable Issuing Bank L/C Issuer until such LC Exposure is reallocated and/or Cash Collateralized; andL/C Obligations are cash collateralized;
(d) so long as such any Lender is a Defaulting Lender, the applicable Issuing Bank under the applicable Facility L/C Issuer shall not be required to issue, amend issue or increase modify any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or Cash Collateral will be cash collateral provided by the applicable Borrower(s) Borrower in accordance with Section 2.20(c2.19(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 11.9 but excluding Section 2.18) 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, pro rata, to the payment of any amounts owing by such Defaulting Lender to the L/C Issuer 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 newly made Swingline Swing Line Loan or newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i) (and respect of which such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to the Parent of any Lender shall occur following the Second Amendment Effective Date and for so long as such event shall continue or (ii) any Issuing Bank or the Swingline Lender has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, such Issuing Bank shall not be required to issue, amend or increase any Letter of Credit and the Swingline Lender shall not be required failed to fund any Swingline Loan, unless such Issuing Bank or the Swingline Lenderits portion thereof as required by this Agreement, as the case may be, shall have entered into arrangements with the Borrowers or such Lender, satisfactory to such Issuing Bank or the Swingline Lender, as the case may be, to defease any risk in respect of such Lender hereunder. In the event that each of determined by the Administrative Agent, the Borrowers(iv) fourth, the applicable Issuing Banks and, in the case of the U.S. Facility, the Swingline Lender agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and/or LC Exposure of the Lenders under the applicable Facility shall be readjusted to reflect the inclusion of such Lender’s Commitment and on the date of such readjustment such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as 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, pro rata, 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 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 L/C Reimbursement Obligations in respect of draws under Letters of Credit with respect to which the L/C Issuer has funded its participation obligations and (y) made at a time when the conditions set forth in Section 3.2 are satisfied, such payment shall determine may be necessary in order for such Lender applied solely to hold such prepay the Loans in accordance with its Applicable Percentageof, and L/C Reimbursement Obligations owed to, all Lenders that are not Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or L/C Reimbursement Obligations owed to, any Defaulting Lender.
Appears in 1 contract
Defaulting Lenders. Notwithstanding any provision of this Agreement or any other Loan Document to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:.
(a) fees shall cease to accrue on the unfunded portion undrawn amount of the Commitments Commitment of such Defaulting Lender pursuant to Section 2.12(a2.11(a);
(b) such Defaulting Lender shall not have the right to vote on any issue on which voting is required (other than to the extent expressly provided in Section 9.02(b)) and the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders (or all Lenders, as the Supermajority Revolving Lenders case may be) have taken or may take any action hereunderhereunder (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender affected thereby if such Defaulting Lender is an affected Lender;
(c) if any Swingline Exposure or LC Exposure exists at the time a such Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated (effective as of the date such Lender becomes a Defaulting Lender) among the non-Defaulting Lenders of the applicable Class in accordance with their respective Applicable Percentages but only to the extent (x) that the sum of all non-Defaulting Lenders’ Revolving Credit Exposures under such Class of Commitments plus such Defaulting Lender’s Swingline Exposure and LC Exposure under such Class of Commitments does not exceed the total of all non-Defaulting Lenders’ Commitments of such Class, (y) no non-Defaulting Lender’s Revolving Exposure under such Class of Commitments is increased above such Lender’s Commitment of such Class as a result thereof and (z) no Event of Default has then occurred and is continuingCommitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the applicable Borrower shall within one three Business Day Days following notice by the Administrative Agent (x) firstAgent, in the case of the U.S. Borrower, prepay such Swingline Exposure and (y) second, Cash Collateralize, cash collateralize for the benefit of the applicable Issuing Bank, such Borrowers’ Banks only the Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure under the applicable Class of Commitments (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.06(k2.05(j) for so long as such LC Exposure is outstanding;
(iii) if a the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, such the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.12(b2.11(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is Cash Collateralizedcash collateralized;
(iv) if the all or any portion of such Defaulting Lender’s LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the all fees that otherwise would have been payable to such Defaulting Lender pursuant to 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 in accordance with such non-Defaulting Lenders’ Applicable Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor Cash Collateralized cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all letter Commitment Fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of credit such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and Letter of Credit participation 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 Bank Banks, ratably based on the portion of such 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 Collateralizedcash collateralized pursuant to clause (i) or (ii) above; and
(d) so long as such Lender is a Defaulting Lender, the applicable no Issuing Bank under the applicable Facility shall not be required to issue, amend or increase any Letter of Credit, unless it such Issuing Bank is satisfied that the related exposure Defaulting Lender’s then outstanding LC Exposure, will be 100% covered by the Commitments of the non-Defaulting Lenders and/or Cash Collateral and, to the extent such 100% coverage is not achieved, by cash collateral which will be provided by the applicable Borrower(s) Borrower in accordance with Section 2.20(c2.19(c), and participating interests in any such newly made Swingline Loan or newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i2.19(c)(i) (and such Defaulting Lender shall not participate therein). .
(e) If (i) a Bankruptcy Event or a Bail-In Action with respect to the Parent a parent of any Lender shall occur following the Second Amendment Effective Date date hereof and for so long as such event shall continue or (ii) any an Issuing Bank or the Swingline Lender has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend creditcredit (such Lender referenced in clauses (i) and (ii), a “Disregarded Lender”), such Issuing Bank shall not be required to issue, amend or increase any Letter of Credit and the Swingline Lender shall not be required to fund any Swingline LoanCredit, unless such Issuing Bank or is satisfied that the Swingline Disregarded Lender’s then outstanding LC Exposure, as will be 100% covered by the case may be, shall have entered into arrangements with Commitments of the Borrowers or such Lender, satisfactory to such Issuing Bank or the Swingline Lender, as the case may benon-Disregarded Lenders and, to defease the extent such 100% coverage is not achieved, by cash collateral which will be provided by the Borrower in accordance with Section 2.19(c), and participating interests in any risk newly issued or increased Letter of Credit shall be allocated among non-Disregarded Lenders in respect of a manner consistent with Section 2.19(c) (and such Disregarded Lender hereunder. shall not participate therein).
(f) In the event that each of the Administrative Agent, the Borrowers, Borrower and the applicable Issuing Banks and, in the case of the U.S. Facility, the Swingline Lender each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and/or LC Exposure of the Lenders under the applicable Facility shall be readjusted to reflect the inclusion of such Lender’s Commitment and on the such date of such readjustment such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage.
(g) The rights and remedies against, and with respect to, a Defaulting Lender under this Section 2.19 are in addition to, and cumulative and not in limitation of, all other rights and remedies that the Administrative Agent, each Lender, each Issuing Bank or the Borrower or any other Loan Party may have at any time against, or with respect to, such Defaulting Lender.
Appears in 1 contract
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting LenderLender :
(a) fees Commitment Fees shall cease to accrue on the unfunded portion of the Commitments Commitment of such Defaulting Lender pursuant to Section 2.12(a2.04(a);.
(b) such Defaulting Lender shall not have the right to vote on any issue on which voting is required (other than to the extent expressly provided in Section 9.02(b)) The Revolving Credit Committed Amount, Loans and the Commitment and Revolving LC Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or the Supermajority Revolving Required Lenders have taken or may take any action hereunder;hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 12.03); provided, this clause (b) shall not apply for purposes of any amendment, modification or waiver that (i) increases such Defaulting Lender’s Revolving Credit Committed Amount or extends the maturity of such Defaulting Lender’s Commitment or (ii) requires the consent of all Lenders or each Lender affected thereby and treats such Defaulting Lender differently than the other respective Lenders.
(c) if If any Swingline Exposure or LC Exposure exists at the time a such Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders of the applicable Class in accordance with their respective Applicable Commitment Percentages but only to the extent (xA) no Event of Default has occurred and is continuing at such time and (B) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures under such Class of Commitments plus such Defaulting Lender’s Swingline Exposure and LC Exposure under such Class of Commitments does not exceed the total of all non-Defaulting Lenders’ Commitments of such Class, (y) no non-Defaulting Lender’s Revolving Exposure under such Class of Commitments is increased above such Lender’s Commitment of such Class as a result thereof and (z) no Event of Default has then occurred and is continuingCommitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the applicable Borrower Parent shall within one Business Day following notice by the Administrative Agent (x) first, in the case of the U.S. Borrower, prepay such Swingline Exposure and (y) second, Cash Collateralize, cash collateralize for the benefit of the applicable Issuing Bank, such Borrowers’ Issuers only the Relevant Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure under the applicable Class of Commitments (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.06(k2.10(i) for so long as such LC Exposure is outstanding;
(iii) if a Borrower Cash Collateralizes the Parent cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, such Borrower the Parent shall not be required to pay any participation fees to such Defaulting Lender pursuant to Section 2.12(b) 2.04(b), and such fees shall not accrue, with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is Cash Collateralizedcash collateralized;
(iv) if the any LC Exposure of the such non-Defaulting Lenders Lender is reallocated pursuant to clause (i) above, then the participation fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(bSection 2.04(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Commitment Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor Cash Collateralized cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank the Issuers or any other Lender hereunder, all letter of credit participation fees payable under Section 2.12(b2.04(b) with respect to such Defaulting Lender’s LC Exposure (to the extent neither so reallocated nor cash collateralized) shall be payable to the applicable Issuing Bank Issuer or Issuers in respect of the Letters of Credit included in such LC Exposure, pro rata until and to the extent that such LC Exposure is so reallocated and/or Cash Collateralized; andcash collateralized.
(d) so So long as such Lender is a Defaulting Lender, the applicable Issuing Bank under the applicable Facility no Issuers shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Commitments and the obligations to participate in Letters of Credit of the non-Defaulting Lenders and/or Cash Collateral cash collateral will be provided by the applicable Borrower(s) Parent in accordance with Section 2.20(c), clauses (c)(i) and participating interests in any such newly made Swingline Loan or newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i(ii) above.
(and such Defaulting Lender shall not participate therein). e) If (i) a Bankruptcy Event with respect to the Parent a parent entity of which any Lender is a subsidiary shall occur following the Second Amendment Effective Date date hereof and for so long as such event shall continue or (ii) any Issuing Bank or the Swingline Lender an Issuer 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 Issuing Bank Issuer shall not be required to issue, amend or increase any Letter of Credit and the Swingline Lender shall not be required to fund any Swingline LoanCredit, unless such Issuing Bank or the Swingline Lender, as the case may be, Issuer shall have entered into arrangements with the Borrowers Parent or such Lender, satisfactory to such Issuing Bank or the Swingline Lender, as the case may be, Issuer to defease any risk to it in respect of such Lender hereunder. .
(f) Any principal, interest, fees or any other amounts payable to or for the account of any Defaulting Lender in its capacity as a Lender hereunder 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 Issuers in respect of such Defaulting Lender’s participations in Letters of Credit, (3) third, to the funding of such Defaulting Lender’s Commitment Percentage of any borrowing in respect of which such Defaulting Lender shall have failed to fund such share as required hereunder, (4) fourth, to cash collateralize participation obligations of such Defaulting Lender in respect of outstanding Letters of Credit and (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 Parent or the non- Defaulting Lenders as a result of any judgment of a court of competent jurisdiction obtained by the Parent or any non-Defaulting Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations hereunder and (D) to the extent not applied or held as aforesaid, be distributed to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction.
(g) In the event that each of the Administrative Agent, the Borrowers, Parent and the applicable Issuing Banks and, in the case of the U.S. Facility, the Swingline Lender Issuers each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and/or LC Exposure of the Lenders under the applicable Facility shall be readjusted to reflect the inclusion of such Lender’s Commitment and on the such date of such readjustment such Lender shall purchase at par such of the Revolving Credit Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Commitment Percentage.
(h) So long as such Lender is a Defaulting Lender, the Parent may, at its option, replace such Defaulting Lender with another commercial lending institution (which may be a Lender) reasonably satisfactory to the Administrative Agent by giving notice of such replacement Lender to such Defaulting Lender and the Administrative Agent. Unless the Administrative Agent or any Issuer shall object to the identity of such proposed replacement Lender within 10 days after receipt of such notice, the Defaulting Lender being so replaced shall, upon indefeasible payment in full to it of all amounts owed to it hereunder and under the other Loan Documents assign all of its interests hereunder and under the Loan Documents to such replacement Lender and such replacement Lender shall assume all of such Defaulting Lender’s obligations hereunder and under the other Loan Documents in accordance with the provisions of 12.14(c).
(i) So long as such Lender is a Defaulting Lender and no Event of Default or Potential Event of Default has occurred or exists, the Parent may, at its option, reduce the unused portion of such Defaulting Lender’s Commitment without being required to reduce any other Lender’s Commitment. Any such reduction shall be effective upon written notice by the Parent to the Administrative Agent.
Appears in 1 contract
Sources: Revolving Credit Agreement (Air Products & Chemicals Inc /De/)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) fees set forth in Section 2.13(a) shall cease to accrue on the unfunded portion of the Commitments Commitment of such Defaulting Lender pursuant to Section 2.12(a)Lender;
(b) to the extent permitted by applicable law, (i) any voluntary prepayment of Revolving Credit Loans shall, if the Borrowers so direct at the time of making such voluntary prepayment, be applied to the Revolving Credit Loans of other Lenders as if such Defaulting Lender shall not have had no Revolving Credit Loans outstanding and the right to vote on Revolving Credit Exposure of such Defaulting Lender were zero, and (ii) any issue on which voting is required (other than mandatory prepayment of the Revolving Credit Loans shall, if the Borrowers so direct at the time of making such mandatory prepayment, be applied to the extent expressly provided in Section 9.02(bRevolving Credit Loans of other Lenders, but not to the Revolving Credit Loans of such Defaulting Lender, it being understood and agreed that the Borrowers shall be entitled to retain any portion of any mandatory prepayment of the Revolving Credit Loans that is not paid to such Defaulting Lender solely as a result of the operation of the provisions of this clause (b);
(c) and the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required all Lenders or the Supermajority Revolving Required Lenders have taken or may take any action hereunderhereunder (including any consent to any amendment or waiver pursuant to Section 10.02), provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lender;
(cd) if any Swingline Exposure or LC Exposure exists at the time a Lender becomes a Defaulting Lender then:
(i) all or any part of the such Swingline Exposure and LC Exposure (other than, in the case of a Defaulting Lender that is a Swingline Lender, the portion of such Defaulting Lender Swingline Exposure referred to in clause (b) of the definition of such term) shall be reallocated among the non-Lenders that are not Defaulting Lenders of the applicable Class in accordance with their respective Applicable Revolving Percentages but but, in any case, only to the extent (x) the sum of the Revolving Credit Exposures of all non-Lenders that are not Defaulting Lenders’ Revolving Exposures under such Class of Commitments Lenders plus such Defaulting Lender’s Swingline Exposure and LC Exposure under such Class of Commitments does not exceed the total of the Commitments of all non-Lenders that are not Defaulting Lenders’ Commitments of such Class, (y) no non-Defaulting Lenderthe Revolving Credit Exposure of any Lender does not exceed such L▇▇▇▇▇’s Revolving Exposure under such Class of Commitments is increased above such Lender’s Credit Commitment of such Class as a result thereof and (z) no Event of Default has then occurred and is continuing;the conditions set forth in Section 5.02 are satisfied at such time; and
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the applicable Borrower Borrowers shall within one Business Day following notice by the Administrative Agent (x) first, in the case of the U.S. Borrower, prepay such Swingline Exposure and (y) second, Cash Collateralize, for the benefit of the applicable Issuing Bank, such Borrowers’ obligations corresponding to cash collateralize such Defaulting Lender’s LC Exposure under the applicable Class of Commitments (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.06(k2.07(k) for so long as such LC Exposure is outstanding;
(iii) if a Borrower Cash Collateralizes the Borrowers cash collateralize any portion of such Defaulting Lender’s LC Exposure pursuant to clause this paragraph (ii) aboved), such Borrower the Borrowers shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.12(b2.13(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is Cash Collateralizedcash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause this paragraph (i) aboved), then the fees payable to the Lenders pursuant to Sections 2.12(aSection 2.13(a) and 2.12(bSection 2.13(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Revolving Percentages; andor
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither cash collateralized nor reallocated nor Cash Collateralized pursuant to clause this paragraph (i) or (ii) aboved), then, without prejudice to any rights or remedies of any the Issuing Bank Lenders or any Lender hereunder, all letter commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of credit such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and fees payable in connection with any Letters of Credit under Section 2.12(b2.13(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank Lenders until such LC Exposure is reallocated cash collateralized and/or Cash Collateralizedreallocated; and
(de) so long as such any Lender is a Defaulting Lender, the applicable no Swingline Lenders shall be required to fund any Swingline Loan and no Issuing Bank under the applicable Facility Lender shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or Cash Collateral cash collateral will be provided by the applicable Borrower(s) Borrowers in accordance with Section 2.20(c)paragraph (d) of this Section, and Swingline Exposure related to any newly made Swingline Loan or LC Exposure and participating interests in any such newly made Swingline Loan or newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with paragraph (d)(i) of this Section 2.20(c)(i) (and such Defaulting Lender Lenders shall not participate therein). If .
(if) a Bankruptcy Event with respect to the Parent of any Lender shall occur following the Second Amendment Effective Date and for so long as such event shall continue or (ii) any Issuing Bank or the Swingline Lender has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, such Issuing Bank shall not be required to issue, amend or increase any Letter of Credit and the Swingline Lender shall not be required to fund any Swingline Loan, unless such Issuing Bank or the Swingline Lender, as the case may be, shall have entered into arrangements with the Borrowers or such Lender, satisfactory to such Issuing Bank or the Swingline Lender, as the case may be, to defease any risk in respect of such Lender hereunder. In the event that each of the Administrative Agent, the Borrowers, Borrower and the applicable Issuing Banks and, in the case of the U.S. Facility, the Swingline Lender agrees Lenders agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and/or LC Exposure of the Lenders under the applicable Facility shall be readjusted to reflect the inclusion of such LenderL▇▇▇▇▇’s Commitment and on the such date of such readjustment such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Revolving Percentage.
Appears in 1 contract
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) fees shall cease to accrue on the unfunded portion of the Commitments Commitment of such Defaulting Lender pursuant to Section 2.12(a2.11(a);
(b) such Defaulting Lender shall not have the right to vote on any issue on which voting is required (other than to the extent expressly provided in Section 9.02(b)) and the Commitment and Revolving Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or the Supermajority Revolving Lenders have taken or may take any action hereunderhereunder (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender affected thereby;
(c) if any Swingline Exposure or LC Exposure exists at the time a such Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders of the applicable Class in accordance with their respective Applicable Percentages Percentages, but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Exposures under such Class of Commitments plus such Defaulting Lender’s Swingline Exposure and LC Exposure under such Class of Commitments does not exceed the total of all non-Defaulting Lenders’ Commitments of such Class, (y) no non-Defaulting Lender’s Revolving Exposure under such Class of Commitments is increased above such Lender’s Commitment of such Class as a result thereof and (z) no Event of Default has then occurred and is continuingCommitments;
(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 (x) first, in the case of the U.S. Borrower, prepay such Swingline Exposure and (y) second, Cash Collateralize, cash collateralize for the benefit of the applicable Issuing Bank, such Borrowers’ Bank only the Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure under the applicable Class of Commitments (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.06(k2.05(i) for so long as such LC Exposure is outstanding;
(iii) if a the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, such the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.12(b2.11(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is Cash Collateralizedcash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a2.11(a) and 2.12(b2.11(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor Cash Collateralized cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any the Issuing Bank or any other Lender hereunder, all 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 applicable Issuing Bank until and to the extent that such LC Exposure is reallocated and/or Cash Collateralizedcash collateralized; and
(d) so long as such Lender is a Defaulting Lender, the applicable Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Bank under the applicable Facility shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or Cash Collateral cash collateral will be provided by the applicable Borrower(s) Borrower in accordance with Section 2.20(c2.19(c), and participating interests in any such newly made Swingline Loan or any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i2.19(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to the any Lender or a Parent of any Lender shall occur following the Second Amendment Effective Date date hereof and for so long as such event shall continue or (ii) any Issuing Bank or the Swingline Lender or the Issuing Bank has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, such the Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit and Credit, unless the Swingline Lender shall not be required to fund any Swingline Loan, unless such Issuing Bank or the Swingline LenderIssuing Bank, as the case may be, shall have entered into arrangements with the Borrowers applicable Borrower or such Lender, satisfactory to such Issuing Bank the Swingline Lender or the Swingline LenderIssuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that each of the Administrative Agent, the Borrowers, the applicable Issuing Banks and, in the case of the U.S. FacilityBorrower, the Swingline Lender and the Issuing Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and/or and LC Exposure of the Lenders under the applicable Facility shall be readjusted to reflect the inclusion of such Lender’s Commitment and on the such date of such readjustment such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable PercentagePercentage (without taking such Lender into account as a “Defaulting Lender” for purposes of the proviso in the definition of such term).
Appears in 1 contract
Sources: Credit Agreement (Fairchild Semiconductor International Inc)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) fees shall cease to accrue on the unfunded portion of the Commitments Commitment of such Defaulting Lender pursuant to Section 2.12(a);
(b) such Defaulting Lender shall not have the right to vote on any issue on which voting is required (other than to the extent expressly provided in Section 9.02(b)) and the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or the Supermajority Revolving Lenders have taken or may take any action hereunderhereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.02); provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender affected thereby;
(c) if any Swingline Exposure or LC Exposure exists at the time a such Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders of the applicable Class in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Exposures under such Class of Commitments plus such Defaulting Lender’s Swingline Credit Exposure and LC Exposure under such Class of Commitments does not exceed the total of all non-Defaulting Lenders’ Commitments of such Class, (y) no non-Defaulting Lender’s Revolving Exposure under such Class of Commitments is increased above such Lender’s Commitment of such Class as a result thereof and (z) no Event of Default has then occurred and is continuingCommitments;
(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 (x) first, in the case of the U.S. Borrower, prepay such Swingline Exposure and (y) second, Cash Collateralize, cash collateralize for the benefit of the applicable Issuing Bank, such Borrowers’ Lender only the Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure under the applicable Class of Commitments (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.06(k2.04(k) for so long as such LC Exposure is outstanding;
(iii) if a the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, such the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.12(b2.12(b)(i) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is Cash Collateralizedcash collateralized;
(iv) if the LC Exposure of the non-Defaulting 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(b)(i) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor Cash Collateralized cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any the Issuing Bank Lender or any other Lender hereunder, all letter of credit fees payable under Section 2.12(b2.12(b)(i) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank Lender until and to the extent that such LC Exposure is reallocated and/or Cash Collateralizedcash collateralized; and
(d) so long as such Lender is a Defaulting Lender, the applicable Issuing Bank under the applicable Facility Lender shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or Cash Collateral cash collateral will be provided by the applicable Borrower(s) Borrower in accordance with Section 2.20(c), and participating interests in any such newly made Swingline Loan or newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein). ; If (i) a Bankruptcy Event with respect to the a Lender Parent of any Lender shall occur following the Second Amendment Effective Date date hereof and for so long as such event shall continue or (ii) any the Issuing Bank or the Swingline Lender has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, such the Issuing Bank Lender shall not be required to issue, amend or increase any Letter of Credit and the Swingline Lender shall not be required to fund any Swingline LoanCredit, unless such the Issuing Bank or the Swingline Lender, as the case may be, Lender shall have entered into arrangements with the Borrowers Borrower or such Lender, satisfactory to such the Issuing Bank or the Swingline Lender, as the case may be, Lender to defease any risk to it in respect of such Lender hereunder. In the event that each of the Administrative Agent, the Borrowers, Borrower and the applicable Issuing Banks and, in the case of the U.S. Facility, the Swingline Lender each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and/or LC Exposure of the Lenders under the applicable Facility shall be readjusted to reflect the inclusion of such Lender’s Commitment and on the such date of such readjustment such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage.
Appears in 1 contract
Sources: Credit Agreement (Griffon Corp)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) except to the extent provided to the contrary in paragraph (iv) of Section 2.20(c) below, facility fees shall cease to accrue on the unfunded portion of the Commitments of such Defaulting Lender pursuant to Section 2.12(a)) on the unused amount of the Commitment of such Defaulting Lender;
(b) such Defaulting Lender shall not have the right to vote on any issue on which voting is required (other than to the extent expressly provided in Section 9.02(b)) and the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or the Supermajority Revolving any other requisite Lenders have taken or may take any action hereunderhereunder 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 a such Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the nonNon-Defaulting Lenders of the applicable Class in accordance with their respective Applicable Percentages but only to the extent (x) that the sum of all nonNon-Defaulting Lenders’ Revolving Credit Exposures under such Class of Commitments plus such Defaulting Lender’s Swingline Exposure and LC Exposure under such Class of Commitments does not exceed the total sum of all nonNon-Defaulting Lenders’ Commitments of such Class, (y) no non-Defaulting Lender’s Revolving Exposure under such Class of Commitments is increased above such Lender’s Commitment of such Class as a result thereof and (z) no Event of Default has then occurred and is continuingCredit Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the applicable Borrower shall shall, within one two Business Day Days following notice by the Administrative Agent (x) firstAgent, in the case of the U.S. Borrower, prepay such Swingline Exposure and (y) second, Cash Collateralize, cash collateralize for the benefit of the applicable Issuing Bank, such Borrowers’ obligations corresponding to Banks the portion of such Defaulting Lender’s LC Exposure under the applicable Class of Commitments (after giving effect to any partial reallocation pursuant to clause (i) above) that has not been reallocated in accordance with the procedures set forth in Section 2.06(k2.06(i) for so long as such LC Exposure is outstanding;
(iii) if a the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, such the Borrower shall not be required to pay any participation fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such portion of such Defaulting Lender’s LC Exposure during the period for so long as such Defaulting Lender’s LC Exposure is Cash Collateralizedcash collateralized;
(iv) if any portion of the LC Exposure of the non-such Defaulting Lenders Lender is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(b) shall be adjusted in accordance with to give effect to such non-Defaulting Lenders’ Applicable Percentagesreallocation; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor Cash Collateralized cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all letter facility fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of credit such Defaulting Lender’s Commitment utilized by such LC Exposure) and participation fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or Cash Collateralizedcash collateralized; and
(d) so long as such Lender is a Defaulting Lender, the applicable no Issuing Bank under the applicable Facility shall not be required to issue, amend amend, renew or increase extend any Letter of Credit, unless in each case it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% fully covered by the Commitments of the nonNon-Defaulting Lenders and/or Cash Collateral will be cash collateral provided by the applicable Borrower(s) Borrower in accordance with Section 2.20(c), and participating interests in any such newly made Swingline Loan issued, amended, renewed or newly issued or increased extended Letter of Credit shall will be allocated among nonthe Non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein). If In the event that (ix) a Bankruptcy Event with respect to the a Lender Parent of any Lender shall occur have occurred following the Second Amendment Effective Date and for so long as such event Bankruptcy Event shall continue or (iiy) any Issuing Bank or the Swingline Lender has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, such no Issuing Bank shall not be required to issue, amend amend, renew or increase extend any Letter of Credit and the Swingline Lender shall not be required to fund any Swingline LoanCredit, unless such Issuing Bank or the Swingline Lender, as the case may be, shall have entered into arrangements with the Borrowers Borrower or such Lender, Lender satisfactory to such Issuing Bank or the Swingline Lender, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that each of the Administrative Agent, the Borrowers, the applicable Borrower and each Issuing Banks and, in the case of the U.S. Facility, the Swingline Lender agrees Bank each agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and/or LC Exposure of the Lenders under the applicable Facility shall be readjusted to reflect the inclusion of such LenderL▇▇▇▇▇’s Commitment and on the such date of such readjustment such Lender shall purchase at par such of the Revolving Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage. Subject to Section 9.16, no reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that L▇▇▇▇▇ having become a Defaulting Lender, including any claim of a Non-Defaulting Lender as a result of such Non-Defaulting L▇▇▇▇▇’s increased exposure following such reallocation.
Appears in 1 contract
Sources: Credit Agreement (NEWMONT Corp /DE/)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) fees shall cease to accrue on the unfunded portion of the Commitments Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a2.8(a);
(b) such Defaulting Lender shall not have the right to vote on any issue on which voting is required (other than to the extent expressly provided in Section 9.02(b)) and the Revolving Commitment and Revolving Exposure Extensions of Credit of such Defaulting Lender shall not be included in determining whether the Required Lenders or the Supermajority Revolving Majority Facility Lenders have taken or may take any action hereunderhereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.1); provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender affected thereby;
(c) in the case of a Revolving Lender, if any Swingline Exposure or LC L/C Exposure of such Lender exists at the time a such 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 non-Defaulting Lenders of the applicable Class in accordance with their respective Applicable Revolving Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Exposures under such Class Extensions of Commitments Credit plus such Defaulting Lender’s Swingline Exposure and LC L/C Exposure under such Class of Commitments does not exceed the total of all non-Defaulting Lenders’ Commitments of such Class, (y) no non-Defaulting Lender’s Revolving Exposure under such Class of Commitments is increased above such Lender’s Commitment of such Class as a result thereof and (z) no Event of Default has then occurred and is continuingCommitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the applicable Borrower shall within one three Business Day Days following notice by the Administrative Agent (x) first, in the case of the U.S. Borrower, prepay such Swingline Exposure and (y) second, Cash Collateralize, cash collateralize for the benefit of the applicable Issuing Bank, such Borrowers’ Lender only the Borrower’s obligations corresponding to such Defaulting Lender’s LC L/C Exposure under the applicable Class of Commitments (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.06(k) 8.1 for so long as such LC L/C Exposure is outstanding;
(iii) if a the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s LC L/C Exposure pursuant to clause (ii) above, such the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.12(b3.3(a) with respect to such Defaulting Lender’s LC L/C Exposure during the period such Defaulting Lender’s LC L/C Exposure is Cash Collateralizedcash collateralized;
(iv) if the LC L/C Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(aSection 2.8(a) and 2.12(bSection 3.3(a) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Revolving Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC L/C Exposure is neither reallocated nor Cash Collateralized cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any the Issuing Bank Lender or any other Lender hereunder, all letter of credit 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 applicable Issuing Bank Lender until and to the extent that such LC L/C Exposure is reallocated and/or Cash Collateralizedcash collateralized; and
(d) in the case of a Revolving Lender, so long as such Lender is a Defaulting Lender, the applicable Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Bank under the applicable Facility Lender shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding L/C Exposure will be 100% covered by the Revolving Commitments of the non-Defaulting Lenders and/or Cash Collateral cash collateral will be provided by the applicable Borrower(s) Borrower in accordance with Section 2.20(c2.23(c), and participating interests in any such newly made Swingline Loan or any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i2.23(c)(i) (and such Defaulting Lender shall not participate therein). If In the case of a Revolving Lender, if (i) a Bankruptcy Event with respect to the a Lender Parent of any Lender shall occur following the Second Amendment Effective Date date hereof and for so long as such event shall continue or (ii) any Issuing Bank the Swingline Lender or the Swingline Issuing Lender has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, such the Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Bank Lender shall not be required to issue, amend or increase any Letter of Credit and Credit, unless the Swingline Lender shall not be required to fund any Swingline Loan, unless such Issuing Bank or the Swingline Issuing Lender, as the case may be, shall have entered into arrangements with the Borrowers Borrower or such Lender, satisfactory to such Issuing Bank the Swingline Lender or the Swingline Issuing Lender, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that each of the Administrative Agent, the Borrowers, the applicable Issuing Banks and, in the case of the U.S. FacilityBorrower, the Swingline Lender and the Issuing Lender each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and/or LC and L/C Exposure of the Lenders under the applicable Facility shall be readjusted to reflect the inclusion of such Lender’s Revolving Commitment and on the such date of such readjustment such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Revolving Percentage.
Appears in 1 contract
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if If any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) commencing on the date that such Lender becomes a Defaulting Lender, fees under Section 2.08(a) shall cease to accrue on the unfunded unused portion of the Commitments Commitment of such Defaulting Lender pursuant to Section 2.12(a)Lender;
(b) such Defaulting Lender shall not have the right to vote on any issue on which voting is required (other than to the extent expressly provided in Section 9.02(b)) and the Commitment and Revolving Exposure Loans of such Defaulting Lender shall not be included in determining whether the Required Lenders or the Supermajority Revolving other requisite Lenders have taken or may take any action hereunderhereunder (including any consent to any amendment or waiver pursuant to Section 9.03), provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender shall require the consent of such Defaulting Lender;
(c) if any Swingline Exposure or LC Exposure exists at the time a such Lender becomes a Defaulting Lender then:
(i) all or any part of provided no Default shall have occurred and be continuing, the Swingline Exposure and LC Exposure of such Defaulting Lender shall be automatically reallocated among the non-Defaulting Lenders of the applicable Class in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures under such Class of Commitments plus such Defaulting Lender’s Swingline Exposure and LC Exposure under such Class of Commitments does not exceed the total of all non-Defaulting Lenders’ Commitments of such Class, (y) no non-Defaulting Lender’s Revolving Exposure under such Class of Commitments is increased above such Lender’s Commitment of such Class as a result thereof and (z) no Event of Default has then occurred and is continuingCommitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the applicable Borrower shall within one three Domestic Business Day Days following notice by the Administrative Agent (x) first, in the case of the U.S. Borrower, prepay such Swingline Exposure and (y) second, Cash Collateralize, either (A) procure the reduction or termination of the Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) or (B) cash collateralize for the benefit of the applicable Issuing Bank, such Borrowers’ Bank only the Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure under the applicable Class of Commitments (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.06(k2.04(i) for so long as such LC Exposure is outstanding;
(iii) if a the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, such the Borrower shall not be required to pay any letter of credit participation fees to such Defaulting Lender pursuant to Section 2.12(b2.08(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is Cash Collateralizedcash collateralized;
(iv) if to the extent that the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the letter of credit participation fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(bSection 2.08(b) shall to the same extent be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure 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 or any other Lender hereunder, all letter of credit participation fees payable under Section 2.12(b2.08(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank until and to the extent that such LC Exposure is reallocated reallocated, reduced, terminated and/or Cash Collateralizedcash collateralized; and
(d) so long as such Lender is a Defaulting Lender, the applicable Issuing Bank under the applicable Facility Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend amend, renew or increase extend any Letter of Credit, unless it is satisfied that the related exposure Defaulting Lender’s then outstanding Swingline Exposure and LC Exposure after giving effect thereto will be 100% covered by the Commitments of the non-Defaulting Lenders and/or Cash Collateral will be provided by the applicable Borrower(s) prepaid, reduced, terminated and/or cash collateralized in accordance with Section 2.20(c2.19(c), and participating interests in any such newly made Swingline Loan or any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i2.19(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to the Parent of any Swingline Lender shall occur following the Second Amendment Effective Date and for so long as such event shall continue or (ii) any Issuing Bank or the Swingline Lender has a good faith belief that any Lender has defaulted in fulfilling its funding obligations under one or more other agreements in which such Lender commits to extend credit, such Issuing Bank shall not be required to issue, amend or increase any Letter of Credit and the Swingline Lender shall not be required to fund any Swingline LoanLoan and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless such Issuing Bank the Swingline Lender or the Swingline LenderIssuing Bank, as the case may be, shall have entered into arrangements with the Borrowers Borrower or such Lender, reasonably satisfactory to such Issuing Bank the Swingline Lender or the Swingline LenderIssuing Bank, as the case may be, to defease any risk to the Swingline Lender or the Issuing Bank in respect of such Lender hereunderhereunder relating to Swingline Exposure and/or LC Exposure. In the event that each of the Administrative Agent, the Borrowers, the applicable Issuing Banks and, in the case of the U.S. FacilityBorrower, the Swingline Lender agrees and the Issuing Banks reasonably determine that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and/or and LC Exposure of the Lenders under the applicable Facility shall be readjusted to reflect the inclusion of such Lender’s Commitment and on the such date of such readjustment such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be is necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage; provided that there shall be no retroactive effect on fees reallocated pursuant to Section 2.19(c)(iv) and (v).
Appears in 1 contract
Defaulting Lenders. Notwithstanding any provision of this Agreement or any other Loan Document to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) fees shall cease to accrue on the unfunded portion of the Commitments Commitment of such Defaulting Lender pursuant to Section 2.12(a)2.5.1;
(b) such Defaulting Lender shall not have the right to vote on any issue on which voting is required (other than to the extent expressly provided in Section 9.02(b)) and the Commitment and Revolving Outstanding Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or the Supermajority Revolving Lenders have taken or may take any action hereunderhereunder (including any consent to any amendment or waiver pursuant to Section 8.2), provided that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender directly affected thereby;
(c) if any Swingline Exposure or LC Exposure exists at the time a Lender becomes a Defaulting Lender then:
(i) all or any part of the such Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders of the applicable Class in accordance with their respective Applicable Percentages Pro Rata Shares but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Outstanding Credit Exposures under such Class of Commitments plus such Defaulting Lender’s Swingline Exposure and LC Exposure under such Class of Commitments does not exceed the total of all non-Defaulting Lenders’ Commitments of such Class, and (y) no the respective Credit Extensions of each non-Defaulting Lender do not, after giving effect to such reallocation, exceed such non-Defaulting Lender’s Revolving Exposure under such Class of Commitments is increased above such Lender’s Commitment of such Class as a result thereof and (z) no Event of Default has then occurred and is continuingCommitment;
(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 (x) first, in the case of the U.S. Borrower, prepay such Swingline Exposure and (y) second, Cash Collateralize, cash collateralize for the benefit of the applicable Issuing Bank, such Borrowers’ Issuer only the Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure under the applicable Class of Commitments (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.06(k2.18(k) for so long as such LC Exposure is outstanding;
(iii) if a the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, such the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.12(b2.18(d) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is Cash Collateralizedcash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(bSection 2.18(d) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable PercentagesPro Rata Share; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither cash collateralized nor reallocated nor Cash Collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank Issuer or any other Lender hereunder, all facility fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.12(b2.18(d) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank Issuer until such LC Exposure is reallocated cash collateralized and/or Cash Collateralizedreallocated; and
(d) so long as such Lender is a Defaulting Lender, the applicable Issuing Bank under Swingline Lender shall not be required to fund any Swingline Loan and the applicable Facility Issuers shall not be required to issue, amend extend the expiry of or increase the amount of any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure and LC Exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or Cash Collateral cash collateral will be provided by the applicable Borrower(s) Borrower in accordance with Section 2.20(c2.27(c), and participating interests in any such newly made Swingline Loan or newly issued or increased Letter of Credit or newly made Swingline Loan shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i2.27(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to the a Parent of any Lender shall occur following the Second Amendment Effective Restatement Date and for so long as such event shall continue or (ii) any Issuing Bank or the Swingline Lender or any Issuer 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 Issuing Bank shall not be required to issue, amend or increase any Letter of Credit and the Swingline Lender shall not be required to fund any Swingline LoanLoan and the Issuers shall not be required to issue, amend to extend the expiry of or increase the amount of any Letter of Credit, unless such Issuing Bank the Swingline Lender or the Swingline LenderIssuers, as the case may be, shall have entered into arrangements with the Borrowers Borrower or such Lender, satisfactory to such Issuing Bank the Swingline Lender or the Swingline LenderIssuers, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that each of the Administrative Agent, the Borrowers, the applicable Issuing Banks and, in the case of the U.S. FacilityBorrower, the Swingline Lender and each Issuer each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and/or and LC Exposure of the Lenders under the applicable Facility shall be readjusted to reflect the inclusion of such Lender’s Commitment and on the such date of such readjustment such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable PercentagePro Rata Share.
Appears in 1 contract
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) fees shall cease to accrue on the unfunded portion of the Commitments Commitment of such Defaulting Lender pursuant to Section 2.12(a)3.3.1 if such Lender is a Defaulting Lender pursuant to (a) or (b) of the definition thereof;
(bi) such Defaulting Lender’s right to approve or disapprove of any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in the definitions of Required Lenders and Required Borrowing Base Lenders; and (ii) in the event that such Defaulting Lender shall not have fail to respond to any request for any waiver, consent, amendment or modification requested hereunder (as to which such Defaulting Lender’s consent or agreement is required) within twenty-one (21) days of written request from the right to vote on any issue on which voting is required (other than to the extent expressly provided in Section 9.02(b)) and the Commitment and Revolving Exposure of Administrative Agent, such Defaulting Lender shall not 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 all Lenders or the Supermajority Revolving Required Lenders have taken or may take any action hereunderhereunder (including any consent to any amendment or waiver pursuant to Section 10.1);
(c) if any Swingline Exposure or LC Exposure exists Letter of Credit Outstandings exist at the time 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 of the applicable Class in accordance with their respective Applicable Percentages but only to the extent that as a result thereof (x) the sum of all non-Defaulting Lenders’ Revolving Exposures under such Class of Commitments Credit Exposure plus such Defaulting Lender’s Swingline Exposure and LC Exposure under such Class Letter of Commitments does Credit Outstandings would not exceed the total of all non-Defaulting Lenders’ Commitments Percentage of such Classthe lesser of (A) the existing Loan Commitment Amount or (B) the Borrowing Base then in effect, (y) no the sum of each non-Defaulting Lender’s Revolving Credit Exposure under plus such Class of Commitments is increased above such non-Defaulting Lender’s Commitment share under this clause (i) of such Class as a result thereof Defaulting Lender’s Letter of Credit Outstandings would not exceed 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) no Event of Default has then occurred and is continuing;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 applicable Borrower shall within one Business Day following notice by the Administrative Agent (x) first, in the case of the U.S. Borrower, prepay such Swingline Exposure and (y) second, Cash Collateralize, for the benefit of the applicable Issuing Bank, such Borrowers’ obligations corresponding to Collateralize such Defaulting Lender’s LC Exposure under the applicable Class Letter of Commitments Credit Outstandings (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.06(k2.6.4(b) for so long as such LC Exposure is Letter of Credit Outstandings are outstanding;
(iii) if a the Borrower Cash Collateralizes any portion of such Defaulting Lender’s LC Exposure Letter of Credit Outstandings pursuant to clause (ii) abovethis Section 2.9(c), such the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.12(b) 3.3.3 with respect to such Defaulting Lender’s LC Exposure Letter of Credit Outstandings during the period such Defaulting Lender’s LC Exposure is Letter of Credit Outstandings are Cash Collateralized;
(iv) if the LC Exposure Letter of Credit Outstandings of the non-Defaulting Lenders is are reallocated pursuant to clause (i) abovethis Section 2.9(c), then the fees payable to the Lenders pursuant to Sections 2.12(a) Section 3.3.1 and 2.12(b) Section 3.3.3 shall be adjusted to give effect to such reallocations in accordance with such non-Defaulting Lenders’ Applicable Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is Letter of Credit Outstandings are neither reallocated nor Cash Collateralized nor reallocated pursuant to clause (i) or (ii) abovethis Section 2.9(c), then, without prejudice to any rights or remedies of any Issuing Bank the Issuer or any Lender hereunder, all letter of credit fees that otherwise would have been payable to such Defaulting Lender under Section 2.12(b) 3.3.3 with respect to such Defaulting Lender’s LC Exposure Letter of Credit Outstandings shall be payable to the applicable Issuing Bank Issuer until such LC Exposure is reallocated Letter of Credit Outstandings are Cash Collateralized and/or Cash Collateralized; andreallocated;
(d) so long as such any Lender is a Defaulting Lender, the applicable Issuing Bank under the applicable Facility Issuer shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or Cash Collateral will be provided by the applicable Borrower(s) Collateralized in accordance with this Section 2.20(c2.9(c), and participating interests in any such newly made Swingline Loan or newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i2.9(c)(i) (and such Defaulting Lender Lenders shall not participate therein). If ; and
(i) a Bankruptcy Event with respect to the Parent of any Lender shall occur following the Second Amendment Effective Date and for so long as such event shall continue or (iie) any Issuing Bank or the Swingline Lender has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, such Issuing Bank shall not be required to issue, amend or increase any Letter of Credit and the Swingline Lender shall not be required to fund any Swingline Loan, unless such Issuing Bank or the Swingline Lender, as the case may be, shall have entered into arrangements with the Borrowers or such Lender, satisfactory amount payable to such Issuing Bank or the Swingline Lender, as the case may be, to defease any risk in respect of such Lender hereunder. In the event that each of the Administrative Agent, the Borrowers, the applicable Issuing Banks and, in the case of the U.S. Facility, the Swingline Lender agrees that a Defaulting Lender has adequately remedied all matters hereunder (whether on account of principal, interest, fees or otherwise and including any amount that caused would otherwise be payable to such Defaulting Lender pursuant to be a Defaulting Lender, then the Swingline Exposure and/or LC Exposure of the Lenders under the applicable Facility shall be readjusted to reflect the inclusion of such Lender’s Commitment and on the date of such readjustment such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage.Section 4.8 but excluding
Appears in 1 contract
Sources: Credit Agreement (Dynamic Offshore Resources, Inc.)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(ai) fees if such Lender is a US Defaulting Lender, the US Commitment Fee shall cease to accrue on the unfunded portion of the Commitments US Commitment of such Lender and (ii) if such Lender is a Canadian Defaulting Lender pursuant Lender, the Canadian Commitment Fee shall cease to Section 2.12(a)accrue on the Canadian Commitment of such Lender, in each case, so long as it is a Defaulting Lender;
(b) such Defaulting Lender shall not have the right to vote on any issue on which voting is required (other than to the extent expressly provided in Section 9.02(b)) and the Commitment and Revolving Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or the Supermajority Revolving Lenders have taken or may take any action hereunder;
(c) if any Swingline Exposure or LC Exposure exists at the time a US Lender becomes a US Defaulting Lender then:
(i) if no Default or Event of Default shall exist, all or any part of such Swingline Exposure shall be reallocated among the non-US Defaulting Lenders in accordance with their respective US Pro Rata Percentages but only to the extent the sum of all non-US Defaulting Lenders’ US Revolving Exposures plus such US Defaulting Lender’s Swingline Exposure does not exceed the total of all non-US Defaulting Lenders’ US Revolving Commitments;
(ii) if the reallocation described in the immediately preceding clause (i) above cannot, or can only partially, be effected, US Borrower shall within one Business Day following notice by the Administrative Agent prepay such Defaulting Lender’s Swingline Exposure;
(c) so long as any US Lender is a US Defaulting Lender, the Swingline Lenders shall not be required to fund any Swingline Loan, unless it is satisfied that the related exposure will be 100% covered by the US Revolving Commitments of the non-US Defaulting Lenders and participations in any such newly made Swingline Loan shall be allocated among non-US Defaulting Lenders in accordance with their respective US Pro Rata Percentages (and US Defaulting Lenders shall not participate therein);
(d) any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of any such US Defaulting Lender (whether voluntary or mandatory, at maturity, or otherwise) or received by the Administrative Agent from a US Defaulting Lender pursuant to Section 14.08 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 US Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such US Defaulting Lender to any US Issuing Bank or Swingline Lenders hereunder; third, to Cash Collateralize the US Issuing Banks’ US Fronting Exposure with respect to such US Defaulting Lender in accordance with this Section; fourth, as the US Borrower may request (so long as no US Default or US Event of Default exists), to the funding of any US Loan in respect of which such US 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 US Borrower, to be held in a deposit account and released pro rata in order to satisfy such US Defaulting Lender’s potential future funding obligations with respect to US Loans under this Agreement and cash collateralize the US Issuing Banks’ future US Fronting Exposure with respect to such US Defaulting Lender with respect to future US Letters of Credit issued under this Agreement, in accordance with this Section; sixth, to the payment of any amounts owing to the US Lenders, the US Issuing Banks or Swingline Lenders as a result of any judgment of a court of competent jurisdiction obtained by any US Lender, the US Issuing Banks or Swingline Lenders against such US Defaulting Lender as a result of such US Defaulting Lender’s breach of its obligations under this Agreement or under any other Loan Document; seventh, so long as no US Default or US Event of Default exists, to the payment of any amounts owing to the US Borrower as a result of any judgment of a court of competent jurisdiction obtained by the US Borrower against such US Defaulting Lender as a result of such US Defaulting Lender’s breach of its obligations under this Agreement or under any other Loan Document; and eighth, to such US 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 US Loans or US Reimbursement Obligations in respect of which such US Defaulting Lender has not fully funded its appropriate share, and such US Loans were made or the related US Letters of Credit were issued at a time when the conditions set forth in Section 5.02 were satisfied or waived, such payment shall be applied solely to pay the US Loans of, and US Reimbursement Obligations owed to, all non-US Defaulting Lenders on a pro rata basis prior to being applied to the payment of any US Loans of, or US Reimbursement Obligations owed to, such US Defaulting Lender until such time as all US Loans and funded and unfunded participations in the US Borrower’s obligations corresponding to such US Defaulting Lender’s US L/C Exposure and Swingline Loans are held by the US Lenders pro rata in accordance with the US Revolving Commitments without giving effect to clause (b) above or clause (f) below. Any payments, prepayments or other amounts paid or payable to a US Defaulting Lender that are applied (or held) to pay amounts owed by a US Defaulting Lender or to post cash collateral pursuant to this Section shall be deemed paid to and redirected by such US Defaulting Lender, and each US Lender irrevocably consents hereto;
(e) any amount payable to such Canadian Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise) shall, in lieu of being distributed to such Canadian Defaulting Lender, be retained by Canadian Borrower 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 Canadian Borrower first, to the funding of any Canadian Loan in respect of which such Canadian Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by Canadian Borrower, second, if so determined by Canadian Borrower, to be held in a deposit account and released pro rata to satisfy such Canadian Defaulting Lender’s potential future funding obligations with respect to Canadian Loans under this Agreement, third, to the payment of any amounts owing to Canadian Borrower as a result of any judgment of a court of competent jurisdiction obtained by Canadian Borrower against such Canadian Defaulting Lender as a result of such Canadian Defaulting Lender’s breach of its obligations under this Agreement and fourth, to such Canadian Defaulting Lender or as otherwise directed by a court of competent jurisdiction;
(f) if any US L/C Exposure exists with respect to such US Lender at the time such US Lender becomes a US Defaulting Lender, then:
(i) all or any part of the Swingline Exposure and LC US L/C Exposure of such US Defaulting Lender shall be reallocated (effective as of the date such US Lender becomes a US Defaulting Lender) among the non-US Defaulting Lenders of the applicable Class in accordance with their respective Applicable US Pro Rata Percentages (for the purposes of such reallocation, such US Defaulting Lender’s US Revolving Commitment shall be disregarded in determining the non-US Defaulting Lenders’ respective US Pro Rata Percentages), but only to the extent (x) that the sum of all non-US Defaulting Lenders’ Revolving Credit Exposures under such Class of Commitments plus such US Defaulting Lender’s Swingline US L/C Exposure and LC Exposure under such Class of Commitments does not exceed the total of all non-US Defaulting Lenders’ Commitments of Commitments, after giving effect to any such Classreallocation, (y) no non-US Defaulting Lender’s Revolving Credit Exposure under shall exceed such Class of Commitments is increased above such non-US Defaulting Lender’s Commitment of such Class as a result thereof and (z) no Event of Default has then occurred and is continuingcontinuing at such time and the other conditions set forth in Section 5.02 have been satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the applicable US Borrower shall shall, within one Business Day following the US Borrower’s receipt of written notice by from the Administrative Agent (x) first, in the case of the U.S. Borrower, prepay such Swingline Exposure and (y) secondAgent, Cash Collateralize, Collateralize for the benefit of the applicable Issuing Bank, such Borrowers’ Banks only US Borrower’s obligations corresponding to such US Defaulting Lender’s LC US L/C Exposure under the applicable Class of Commitments (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.06(k2.22(i) for so long as such LC US L/C Exposure is outstanding;
(iii) if a US Borrower Cash Collateralizes any portion of such US Defaulting Lender’s LC US L/C Exposure pursuant to clause (ii) above, such the US Borrower shall not be required to pay any US Letter of Credit fees to such Defaulting Lender pursuant to Section 2.12(b) 2.05 with respect to such US Defaulting Lender’s LC US L/C Exposure during the period such US Defaulting Lender’s LC US L/C Exposure is Cash CollateralizedCollateralized by US Borrower;
(iv) if the LC all or any portion of such US Defaulting Lender’s US L/C Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the all US Letter of Credit fees that otherwise would have been payable to such Defaulting Lender under Section 2.05 with respect to such US Defaulting Lender’s reallocated US L/C Exposure shall be payable to the non-US Defaulting Lenders pursuant to Sections 2.12(a) and 2.12(b) shall be adjusted in accordance with such non-US Defaulting Lenders’ Applicable Percentages; andUS Pro Rata Percentages after giving effect to such reallocation;
(v) if all or any portion of such US Defaulting Lender’s LC US 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 US Issuing Bank or any other Lender hereunder, all letter Letter of credit Credit fees that otherwise would have been payable to such US Defaulting Lender under Section 2.12(b) 2.05 with respect to such US Defaulting Lender’s LC unreallocated US L/C Exposure shall be payable to the applicable US Issuing Bank Banks, ratably based on the portion of the US Fronting Exposure attributable to the US Letters of Credit issued by each US Issuing Bank, until and to the extent that such LC US L/C Exposure is reallocated and/or Cash CollateralizedCollateralized pursuant to clause (i) or (ii) above; and
(dg) so long as such US Lender is determined by the Administrative Agent or any US Issuing Bank to be a US Defaulting Lender, the applicable Issuing Bank under the applicable Facility shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or Cash Collateral will be provided by the applicable Borrower(s) in accordance with Section 2.20(c), and participating interests in any such newly made Swingline Loan or newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to the Parent of any Lender shall occur following the Second Amendment Effective Date and for so long as such event shall continue or (ii) any Issuing Bank or the Swingline Lender has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, such Issuing Bank shall not be required to issue, amend or increase any US Letter of Credit, unless it is satisfied that the related US Fronting Exposure and the US Defaulting Lender’s then outstanding US L/C Exposure will be 100% covered by the Commitments of the non-US Defaulting Lenders and/or Cash Collateral will be provided by US Borrower in accordance with Section 2.21, and participating interests in any newly issued or increased US Letter of Credit shall be allocated among non-US Defaulting Lenders in a manner consistent with Section 2.21 (and the Swingline such US Defaulting Lender shall not be required to fund any Swingline Loanparticipate therein). In the event that the Administrative Agent, unless such Issuing Bank US Borrower or the Swingline LenderLenders, as the case may be, shall have entered into arrangements with the Borrowers or such Lender, satisfactory to such Issuing Bank or the Swingline Lender, as the case may be, to defease any risk in respect of such Lender hereunder. In the event that each of the Administrative Agent, the Borrowers, the applicable Issuing Banks and, in the case of the U.S. Facility, the Swingline Lender agrees that a US Defaulting Lender has adequately remedied all matters that caused such US Lender to be a US Defaulting Lender, then the Swingline Exposure and/or LC Exposure of the US Lenders under the applicable Facility shall be readjusted to reflect the inclusion of such US Lender’s US Commitment and on the such date of such readjustment such US Lender shall purchase at par such of the US Loans of the other US Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such US Lender to hold such US Loans in accordance with its Applicable US Pro Rata Percentage. The rights and remedies against a Defaulting Lender under this Section 2.21 are in addition to other rights and remedies that any Borrower, the Administrative Agent, the Swingline Lenders and the non- Defaulting Lenders may have against such Defaulting Lender. The arrangements permitted or required by this Section 2.21 shall be permitted under this Agreement, notwithstanding any limitation on Liens or the pro rata sharing provisions or otherwise. The rights and remedies against a Defaulting Lender under this Section 2.21 are in addition to other rights and remedies that any Borrower, the Administrative Agent, the Swingline Lenders and the non-Defaulting Lenders may have against such Defaulting Lender.
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Defaulting Lenders. Notwithstanding any provision of anything contained in this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) fees no commitment fee shall cease accrue for the account of a Defaulting Lender so long as such Lender shall be a Defaulting Lender;
(b) in determining the Required Lenders or Required Revolving Lenders, as applicable, any Lender that at the time is a Defaulting Lender (and the Loans and/or Commitment of such Defaulting Lender) shall be excluded and disregarded;
(c) the Borrower shall have the right, at its sole expense and effort (i) to accrue on seek one or more Persons reasonably satisfactory to the unfunded portion Administrative Agent and the Borrower to each become a substitute Lender and assume all or part of the Commitment of any Defaulting Lender and the Borrower, the Administrative Agent and any such substitute Lender shall execute and deliver, and such Defaulting Lender shall thereupon be deemed to have executed and delivered, a duly completed Assignment and Acceptance to effect such substitution or (ii) upon notice to the Administrative Agent, to prepay the Loans and, at the Borrower’s option, terminate the Commitments of such Defaulting Lender pursuant to Section 2.12(a)Lender, in whole or in part, without premium or penalty;
(b) such Defaulting Lender shall not have the right to vote on any issue on which voting is required (other than to the extent expressly provided in Section 9.02(b)) and the Commitment and Revolving Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or the Supermajority Revolving Lenders have taken or may take any action hereunder;
(cd) if any Swingline Exposure or LC L/C Exposure exists at the time a Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline such L/C Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the nonNon-Defaulting Lenders of the applicable Class in accordance with their respective Applicable Revolving Commitment Percentages but only to the extent (x) the sum of all nonNon-Defaulting Lenders’ Revolving Exposures under such Class of Commitments plus such Defaulting Lender’s Swingline L/C Exposure and LC Exposure under such Class of Commitments does not exceed the total of all nonNon-Defaulting Lenders’ Commitments of such Class, (y) no non-Defaulting Lender’s Revolving Exposure under such Class of Commitments is increased above such Lender’s Commitment of such Class as a result thereof and (z) no Event of Default has then occurred and is continuingCommitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the applicable Borrower shall shall, within one Business Day following notice by the Administrative Agent (x) firstAgent, in the case of the U.S. Borrower, prepay such Swingline Exposure and (y) second, Cash Collateralize, for the benefit of the applicable Issuing Bank, such Borrowers’ obligations corresponding to cash collateralize such Defaulting Lender’s LC L/C Exposure under the applicable Class of Commitments (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with on terms reasonably satisfactory to the procedures set forth in Section 2.06(k) relevant Issuing Banks for so long as such LC L/C Exposure is outstanding;; or
(iii) if a Borrower Cash Collateralizes any portion of such Defaulting Lender’s LC L/C Exposure is cash collateralized pursuant to clause (ii) above, such the Borrower shall not be required to pay any fees to such Defaulting Lender the Issuing Bank Fee pursuant to Section 2.12(b2.05(c) with respect to such Defaulting Lender’s LC Exposure during the period portion of such Defaulting Lender’s LC L/C Exposure so long as it is Cash Collateralizedcash collateralized;
(ive) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC L/C Exposure is neither reallocated nor Cash Collateralized to the Non-Defaulting Lenders pursuant to clause (i) or (iid)(i) above, then, without prejudice to any rights or remedies of any Issuing Bank or any Lender hereunder, all then the letter of credit fees payable under Section 2.12(b) commission with respect to such Defaulting Lender’s LC Exposure portion shall be payable to allocated among the applicable Non-Defaulting Lenders in accordance with their Revolving Commitment Percentages. No Issuing Bank until such LC Exposure is reallocated and/or Cash Collateralized; and
(d) so long as such Lender is a Defaulting Lender, the applicable Issuing Bank under the applicable Facility shall not be required to issue, amend amend, extend or increase any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the nonNon-Defaulting Lenders and/or Cash Collateral will be provided by the applicable Borrower(s) in accordance with Section 2.20(c)cash collateralized on terms reasonably satisfactory to it, and participating interests participations in any such newly made Swingline Loan or newly issued or increased Letter of Credit shall be allocated among nonNon-Defaulting Lenders in a manner consistent accordance with Section 2.20(c)(i) their respective Revolving Commitment Percentages (and such Defaulting Lender Lenders shall not participate therein). If ;
(f) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.18) may, in lieu of being distributed to such Defaulting Lender, be retained by the Administrative Agent in a segregated non-interest bearing account and, subject to any applicable Requirement of Law, be applied at such time or times as may be determined by the Administrative Agent (i) a Bankruptcy Event with respect first, to the Parent payment of any amounts owing by such Defaulting Lender shall occur following to the Second Amendment Effective Date and for so long as such event shall continue or Administrative Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to the Issuing Bank Banks hereunder, (iii) third, to the funding of any Loan or the Swingline Lender has a good faith belief that any Lender has defaulted in fulfilling its obligations under one funding or more other agreements in which such Lender commits to extend credit, such Issuing Bank shall not be required to issue, amend or increase cash collateralization of 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 the Administrative Agent, (iv) fourth, if so determined by the Administrative Agent and the Swingline Borrower, held in such account as cash collateral for future funding obligations of the Defaulting Lender shall not be required under this Agreement, (v) fifth, pro rata, to fund the payment of any Swingline Loan, unless such Issuing Bank amounts owing to the Borrower or the Swingline 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 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 amount of reimbursement in respect of letter of credit disbursements in respect of which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 4.01 are satisfied, such payment shall be applied solely to prepay the Loans of, and amounts of reimbursement of an L/C Disbursement owed to, all Non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or amounts of reimbursement of an L/C Disbursement owed to, any Defaulting Lender; and
(g) In the event that the Administrative Agent, the Borrower, each applicable Issuing Bank, as the case may be, shall have entered into arrangements with the Borrowers or such Lender, satisfactory to such Issuing Bank or the Swingline Lender, as the case may be, to defease any risk in respect of such Lender hereunder. In the event that each of the Administrative Agent, the Borrowers, the applicable Issuing Banks and, in the case of the U.S. Facility, the Swingline Lender agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and/or LC L/C Exposure of the Lenders under the applicable Facility shall be readjusted to reflect the inclusion of such Lender’s Commitment and and, on the date of such readjustment date, such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Revolving Commitment Percentage. The rights and remedies against a Defaulting Lender under this Section 2.22 are in addition to other rights and remedies that the Borrower, the Administrative Agent, the Issuing Banks and the Non-Defaulting Lenders may have against such Defaulting Lender. The arrangements permitted or required by this Section 2.22 shall be permitted under this Agreement, notwithstanding any limitation on Liens or the pro rata sharing provisions or otherwise.
Appears in 1 contract
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) fees the Facility Fees, Participation Fees and Fronting Fees shall cease to accrue on the unfunded portion Commitments, Loans and/or Letters of the Commitments Credit (or participations therein) of such Defaulting Lender pursuant to Section 2.12(a)Lender;
(b) such Defaulting Lender shall not have the right to vote on any issue on which voting is required (other than to the extent expressly provided in Section 9.02(b)) Commitments and the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or the Supermajority Revolving any other requisite Lenders have taken or may take any action hereunderhereunder or under any other Loan 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 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 non-Defaulting Lenders of the applicable Class in accordance with their respective Applicable Percentages Pro Rata Percentages, (x) but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Exposures under such Class of Commitments Credit Exposure plus such Defaulting Lender’s Swingline Exposure and LC Exposure under such Class of Commitments does not exceed the total of all non-Defaulting Lenders’ Commitments of such Class, and (y) no non-Defaulting Lender’s Revolving Exposure under such Class of Commitments is increased above such Lender’s Commitment of such Class as a result thereof and (z) only to the extent that no Event of Default has then shall have occurred and is continuingbe 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 applicable Borrower shall within one three Business Day Days following notice by the Administrative Agent (x) first, in the case of the U.S. Borrower, prepay such Swingline Exposure and (y) second, Cash Collateralizecash collateralize, for the benefit of the applicable Issuing BankBanks, such Borrowers’ the Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure under the applicable Class of Commitments (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.06(k2.20(j) for so long as such LC Exposure is outstanding;
(iii3) if a the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, such the Borrower or the Administrative Agent shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.12(b2.09(e) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is Cash Collateralizedcash collateralized;
(iv4) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a2.09(a) and 2.12(b) or 2.09(e), as applicable, shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Pro Rata Percentages; and
(v5) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor Cash Collateralized cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any Lender hereunder, all 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 applicable Issuing Bank Banks entitled to reimbursement until such LC Exposure is reallocated and/or Cash Collateralized; andcash collateralized;
(de) so long as such Lender is a Defaulting Lender, the applicable Issuing Bank under the applicable Facility Banks shall not be required to issue, amend issue or increase any Letter of Credit, unless it the Applicable Issuing Bank, as the case may be, is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or Cash Collateral cash collateral will be provided by the applicable Borrower(s) Borrower in accordance with Section 2.20(c2.19(c), and participating interests in any such newly made Swingline Loan or newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i2.19(c)(1) (and such Defaulting Lender shall not participate therein). If ; and
(if) a Bankruptcy Event with respect to the Parent of any Lender shall occur following the Second Amendment Effective Date and for so long as such 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 (i) first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to any Issuing Bank 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 existing or future participating interest in any Letter of Credit, (iv) 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 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 Bank 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 payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, and (viii) eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans or reimbursement obligations in respect of LC Disbursements which such Defaulting Lender has 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. The Borrower may terminate the 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 the Swingline Lender has a good faith belief that any Lender has defaulted may have against such Defaulting Lender. The rights and remedies against, and with respect to, a Defaulting Lender under this Section are in fulfilling its obligations under one or more addition to, and cumulative and not in limitation of, all other agreements in which such Lender commits to extend credit, such Issuing Bank shall not be required to issue, amend or increase any Letter of Credit rights and the Swingline Lender shall not be required to fund any Swingline Loan, unless such Issuing Bank or the Swingline Lender, as the case may be, shall have entered into arrangements with the Borrowers or such Lender, satisfactory to such Issuing Bank or the Swingline Lender, as the case may be, to defease any risk in respect of such Lender hereunder. In the event remedies that each of the Administrative Agent, any Lender or the BorrowersBorrower may at any time have against, the applicable Issuing Banks andor with respect to, in the case of the U.S. Facility, the Swingline Lender agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and/or LC Exposure of the Lenders under the applicable Facility shall be readjusted to reflect the inclusion of such Lender’s Commitment and on the date of such readjustment such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage.
Appears in 1 contract
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) fees shall cease to accrue on the unfunded portion of the Commitments Commitment of such Defaulting Lender pursuant to Section 2.12(a)2.5;
(b) such Defaulting Lender shall not have the right to vote on any issue on which voting is required (other than to the extent expressly provided in Section 9.02(b)) and the Commitment and Revolving Outstanding Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required all Lenders or the Supermajority Revolving Required Lenders have taken or may take any action hereunderhereunder (including any consent to any amendment or waiver pursuant to Section 8.2), provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender that affects such Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lender;
(c) if any Swingline Exposure Swing Line Loans shall be outstanding or any LC Exposure exists Obligations exist at the time 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 non-Defaulting Lenders of the applicable Class in accordance with their respective Applicable Percentages Pro Rata Shares but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Exposures under such Class of Commitments Outstanding Credit Exposure plus such Defaulting Lender’s Swingline Exposure Lenders’ Loans and LC Exposure under such Class of Commitments participations in and commitments with respect to Loans and Facility LCs does not exceed the total of all non-Defaulting Lenders’ Lender’s Commitments of such Class, and (y) no non-Defaulting Lender’s Revolving Exposure under the conditions set forth in Article IV are satisfied at such Class of Commitments is increased above time; provided, that the Standby LC Fees payable to the Lenders shall be determined taking into account any such Lender’s Commitment of such Class as a result thereof and (z) no Event of Default has then occurred and is continuingreallocation;
(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 (x) first, in prepay the case Defaulting Lender’s Revolving Percentage of the U.S. Borrower, prepay such Swingline Exposure outstanding Swing Line Loans that were not reallocated and (y) second, Cash Collateralize, for the benefit of the applicable Issuing Bank, such Borrowers’ obligations corresponding to cash collateralize such Defaulting Lender’s Pro Rata Share of the LC Exposure under the applicable Class of Commitments (after giving effect to any partial reallocation pursuant to clause (i) above) Obligations in accordance with the procedures set forth in Section 2.06(k) 8.1 for so long as such Facility LC Exposure is outstanding;
(iii) if a the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s Facility LC Exposure pursuant to clause (ii) above, such the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.12(b2.19(d) with respect to such Defaulting Lender’s Facility LC Exposure during the period such Defaulting Lender’s Facility LC Exposure is Cash Collateralized;cash collateralized by the Borrower; and
(iv) if the any Defaulting Lender’s Facility LC Exposure of the non-Defaulting Lenders 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 in accordance with such non-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 Lender hereunder, all letter of credit fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank until such LC Exposure is reallocated and/or Cash Collateralized; and
(d) so long as such Lender is a Defaulting Lender, the applicable Issuing Bank under the applicable Facility shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or Cash Collateral will be provided by the applicable Borrower(s) in accordance with Section 2.20(c), and participating interests in any such newly made Swingline Loan or newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to the Parent of any Lender shall occur following the Second Amendment Effective Date and for so long as such event shall continue or (ii) any Issuing Bank or the Swingline Lender has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, such Issuing Bank shall not be required to issue, amend or increase any Letter of Credit and the Swingline Lender shall not be required to fund any Swingline Loan, unless such Issuing Bank or the Swingline Lender, as the case may be, shall have entered into arrangements with the Borrowers or such Lender, satisfactory to such Issuing Bank or the Swingline Lender, as the case may be, to defease any risk in respect of such Lender hereunder. In the event that each of the Administrative Agent, the Borrowers, the applicable Issuing Banks and, in the case of the U.S. Facility, the Swingline Lender agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and/or LC Exposure of the Lenders under the applicable Facility shall be readjusted to reflect the inclusion of such Lender’s Commitment and on the date of such readjustment such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage.rights
Appears in 1 contract
Sources: Credit Agreement (Cabelas Inc)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:.
(a) fees shall cease to accrue on the unfunded portion of the Commitments Commitment of such Defaulting Lender pursuant to Section 2.12(a);
(b) such Defaulting Lender shall not have the right to vote on any issue on which voting is required (other than to the extent expressly provided in Section 9.02(b10.02(b)) and the Commitment and Revolving Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or the Supermajority Revolving Lenders have taken or may take any action hereunder;
(c) if any Swingline Exposure or LC Exposure exists at the time 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 of the applicable Class in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Exposures under such Class of Commitments plus such Defaulting Lender’s Swingline Exposure and LC Exposure under such Class of Commitments does not exceed the total of all non-Defaulting Lenders’ Commitments of such Class, (y) no non-Defaulting Lender’s Revolving Exposure under such Class of Commitments is increased above such Lender’s Commitment of such Class as a result thereof and (z) no Event of Default has then occurred and is continuingCommitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the applicable Borrower Company shall within one Business Day following notice by the Administrative Agent (x) first, in the case of the U.S. Borrower, prepay such Swingline Exposure and (y) second, Cash Collateralizecash collateralize, for the benefit of the applicable Issuing Bank, such Borrowers’ the Company’s obligations corresponding to such Defaulting Lender’s LC Exposure under the applicable Class of Commitments (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.06(k2.06(j) for so long as such LC Exposure is outstanding;
(iii) if a Borrower Cash Collateralizes the Company cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, such Borrower the Company shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is Cash Collateralizedcash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor Cash Collateralized cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any the Issuing Bank or any Lender hereunder, all letter of credit fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank until such LC Exposure is reallocated and/or Cash Collateralizedcash collateralized; and
(d) so long as such Lender is a Defaulting Lender, : the applicable Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Bank under the applicable Facility shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or Cash Collateral cash collateral will be provided by the applicable Borrower(s) Company in accordance with Section 2.20(c), and participating interests in any such newly made Swingline Loan or newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to the Parent of any Lender shall occur following the Second Amendment Effective Date date hereof and for so long as such event shall continue or (ii) any the Issuing Bank or the Swingline Lender has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, such the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit and the Swingline Lender shall not be required to fund any Swingline Loan, unless such the Issuing Bank or the Swingline Lender, as the case may be, shall have entered into arrangements with the Borrowers Company or such Lender, satisfactory to such the Issuing Bank or the Swingline Lender, as the case may be, to defease any risk in respect of such Lender hereunder. In the event that each of the Administrative Agent, the BorrowersCompany, the applicable Issuing Banks and, in the case of the U.S. Facility, Bank and the Swingline Lender agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and/or and LC Exposure of the Lenders under the applicable Facility shall be readjusted to reflect the inclusion of such Lender’s Commitment and on the date of such readjustment such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage.
Appears in 1 contract
Sources: Credit Agreement (Furmanite Corp)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) fees shall cease to accrue on the unfunded portion of the Commitments Commitment of such Defaulting Lender pursuant to Section 2.12(a);
(b) such Defaulting Lender shall not have the right to vote on any issue on which voting is required (other than to the extent expressly provided in Section 9.02(b)) and the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or the Supermajority Revolving Lenders have taken or may take any action hereunderhereunder (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender affected thereby;
(c) if any Swingline Exposure or LC Exposure exists at the time a such Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders of the applicable Class in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures under such Class of Commitments plus such Defaulting Lender’s Swingline Exposure and LC Exposure under such Class of Commitments does not exceed the total of all non-Defaulting Lenders’ Commitments of such Class, (y) no non-Defaulting Lender’s Revolving Exposure under such Class of Commitments is increased above such Lender’s Commitment of such Class as a result thereof and (z) no Event of Default has then occurred and is continuingCommitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the applicable Borrower Company shall within one five (5) Business Day Days following notice by the Administrative Agent (x) first, in the case of the U.S. Borrower, prepay such Swingline Exposure and (y) second, Cash Collateralize, cash collateralize for the benefit of the applicable Issuing Bank, such Bank only the Borrowers’ obligations corresponding to such Defaulting Lender’s LC Exposure under the applicable Class of Commitments (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.06(k2.06(j) for so long as such LC Exposure is outstanding;
(iii) if a Borrower Cash Collateralizes the Company cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, such Borrower the Borrowers shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is Cash Collateralizedcash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and Section 2.12(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor Cash Collateralized cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any the Issuing Bank or any other Lender hereunder, all 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 applicable Issuing Bank until and to the extent that such LC Exposure is reallocated and/or Cash Collateralizedcash collateralized; and
(d) so long as such Lender is a Defaulting Lender, the applicable Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Bank under the applicable Facility shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or Cash Collateral cash collateral will be provided by the applicable Borrower(s) Company in accordance with Section 2.20(c2.25(c), and participating interests in any such newly made Swingline Loan or any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i2.25(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to the a Parent of any Lender shall occur following the Second Amendment Effective Date date hereof and for so long as such event shall continue or (ii) any Issuing Bank or the Swingline Lender or the Issuing Bank has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, such the Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit and Credit, unless the Swingline Lender shall not be required to fund any Swingline Loan, unless such Issuing Bank or the Swingline LenderIssuing Bank, as the case may be, shall have entered into arrangements with the Borrowers Company or such Lender, satisfactory to such Issuing Bank the Swingline Lender or the Swingline LenderIssuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that each of the Administrative Agent, the Borrowers, the applicable Issuing Banks and, in the case of the U.S. FacilityCompany, the Swingline Lender and the Issuing Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then (i) the Swingline Exposure and/or and LC Exposure of the Lenders under the applicable Facility shall be readjusted to reflect the inclusion of such Lender’s Commitment and on the such date of such readjustment such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable PercentagePercentage and (ii) any cash, or portion thereof, as applicable, provided by the Company as cash collateral under this Section 2.25 shall be promptly released and returned to the Company.
Appears in 1 contract
Sources: Credit Agreement (Bruker Corp)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) fees the Commitment Fee shall cease to accrue on the unfunded portion of the Commitments Commitment of such Lender so long as it is a Defaulting Lender (except to the extent it is payable to the Issuing Bank pursuant to Section 2.12(aclause (b)(v) below);
(b) such Defaulting Lender shall not have the right to vote on any issue on which voting is required (other than to the extent expressly provided in Section 9.02(b)) and the Commitment and Revolving Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or the Supermajority Revolving Lenders have taken or may take any action hereunder;
(c) if any Swingline Exposure or LC Exposure exists at the time a Lender becomes a Defaulting Lender then:
(i) so long as no Default or Event of Default has occurred and is continuing, all or any part of the such Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders of the applicable Class in accordance with their respective Applicable Pro Rata Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Exposures under such Class of Commitments plus such Defaulting Lender’s Swingline Exposure and LC Exposure under such Class of Commitments does not exceed the total of all non-Defaulting Lenders’ Commitments of such Class, (y) no non-Defaulting Lender’s Revolving Exposure under such Class of Commitments is increased above such Lender’s Commitment of such Class as a result thereof and (z) no Event of Default has then occurred and is continuingCommitments;
(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 (x) first, in the case of the U.S. Borrower, prepay such Defaulting Lender’s Swingline Exposure and (y) second, Cash Collateralize, for the benefit of the applicable Issuing Bank, such Borrowers’ obligations corresponding to cash collateralize such Defaulting Lender’s LC Exposure under the applicable Class of Commitments (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.06(k2.18(i) for so long as such LC Exposure is outstanding;
(iii) if a Borrower Cash Collateralizes any portion of such Defaulting Lender’s LC Exposure is cash collateralized pursuant to clause (ii) above, such Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.12(b) the LC Participation Fee with respect to such portion of such Defaulting Lender’s LC Exposure during the period so long as it is cash collateralized;
(iv) if any portion of such Defaulting Lender’s LC Exposure is Cash Collateralized;
(iv) if the LC Exposure of reallocated to the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable LC Participation Fee with respect to the Lenders pursuant to Sections 2.12(a) and 2.12(b) such portion shall be adjusted allocated among the non-Defaulting Lenders in accordance with such non-Defaulting Lenders’ Applicable their Pro Rata Percentages; andor
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither cash collateralized nor reallocated nor Cash Collateralized pursuant to clause (i) or (ii) abovethis Section 2.19(b), then, without prejudice to any rights or remedies of any the Issuing Bank or any Lender hereunder, all letter the Commitment Fee that otherwise would have been payable to such Defaulting Lender (with respect to the portion of credit fees such Defaulting Lender’s Revolving Commitment that was utilized by such LC Exposure) and the LC Participation Fee payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank until such LC Exposure is reallocated cash collateralized and/or Cash Collateralized; andreallocated;
(dc) so long as such any Lender is a Defaulting Lender, the applicable Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Bank under the applicable Facility shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Revolving Commitments of the non-Defaulting Lenders and/or Cash Collateral will be provided by the applicable Borrower(s) cash collateralized in accordance with Section 2.20(c2.19(b), and participating interests participations in any such newly made Swingline Loan or newly issued or increased Letter of Credit or newly made Swingline Loan shall be allocated among non-Defaulting Lenders in a manner consistent accordance with Section 2.20(c)(i) their respective Pro Rata Percentages (and such Defaulting Lender Lenders shall not participate therein). If ;
(d) such 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
(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 2.14(d) but excluding Section 2.16(b)) may, in lieu of being distributed to such Defaulting Lender, be retained by the 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 (i) a Bankruptcy Event with respect first, to the Parent payment of any amounts owing by such Defaulting Lender shall occur following to the Second Amendment Effective Date and for so long as such event shall continue or Administrative Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to the Issuing Bank or the Swingline Lender hereunder, (iii) third, to the funding of any Loan or the funding or cash collateralization of any participation in any Swingline Loan or 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 the Administrative Agent, (iv) fourth, if so determined by the Administrative Agent and Borrower, 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 Borrower or the Lenders as a good faith belief that result of any judgment of a court of competent jurisdiction obtained by Borrower or any Lender has defaulted in fulfilling against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under one this Agreement and (vi) sixth, to such Defaulting Lender or more other agreements as otherwise directed by a court of competent jurisdiction; provided that if such payment is (x) a prepayment of the principal amount of any Loans or Reimbursement Obligations in respect of LC Disbursements which such a Defaulting Lender commits to extend credithas funded its participation obligations and (y) made at a time when the conditions set forth in Section 4.02 are satisfied, such Issuing Bank payment shall not be required applied solely to issueprepay the Loans of, amend and Reimbursement Obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or increase Reimbursement Obligations owed to, any Letter of Credit and Defaulting Lender. In the Swingline Lender shall not be required to fund any Swingline Loanevent that the Administrative Agent, unless such Borrower, the Issuing Bank or the Swingline Lender, as the case may be, shall have entered into arrangements with the Borrowers or such Lender, satisfactory to such Issuing Bank or the Swingline Lender, as the case may be, to defease any risk in respect of such Lender hereunder. In the event that each of the Administrative Agent, the Borrowers, the applicable Issuing Banks and, in the case of the U.S. Facility, the Swingline Lender agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and/or and LC Exposure of the Lenders under the applicable Facility shall be readjusted to reflect the inclusion of such Lender’s Commitment and on the such date of such readjustment such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Pro Rata Percentage, whereupon such Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the 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 that Lender’s having been a Defaulting Lender. The rights and remedies against a Defaulting Lender under this Section 2.19 are in addition to other rights and remedies that Borrower, the Administrative Agent, the Issuing Bank, the Swingline Lender and the non-Defaulting Lenders may have against such Defaulting Lender. The arrangements permitted or required by this Section 2.19 shall be permitted under this Agreement, notwithstanding any limitation on Liens or the pro rata sharing provisions or otherwise.
Appears in 1 contract
Sources: Credit Agreement (Ducommun Inc /De/)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) fees shall cease to accrue on the unfunded portion of the Commitments Commitment of such Defaulting Lender pursuant to Section 2.12(a2.5(a);
(b) such Defaulting Lender shall not have the right to vote on any issue on which voting is required (other than to the extent expressly provided in Section 9.02(b)) and the Commitment and Revolving Exposure Extensions of Credit of such Defaulting Lender shall not be included in determining whether the Required all Lenders or the Supermajority Revolving Required Lenders have taken or may take any action hereunderhereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.1); provided that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender;
(c) if any Swingline Exposure or LC L/C Exposure exists at the time a such 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 non-Defaulting Lenders of the applicable Class in accordance with their respective Applicable Revolving Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Exposures under such Class Extensions of Commitments Credit plus such Defaulting Lender’s Swingline Exposure and LC L/C Exposure under such Class of Commitments does not exceed the total of all non-Defaulting Lenders’ Commitments of such Class, (y) no non-Defaulting Lender’s Revolving Exposure under such Class of Commitments is increased above such Lender’s Commitment of such Class as a result thereof and (z) no Event of Default has then occurred and is continuingCommitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the applicable Borrower shall shall, within one two Business Day Days following notice by the Administrative Agent (x) first, in the case of the U.S. Borrower, prepay such Swingline Exposure and (y) second, Cash Collateralize, cash collateralize for the benefit of the applicable Issuing Bank, such Borrowers’ Lender only the Borrower’s obligations corresponding to such Defaulting Lender’s LC L/C Exposure under the applicable Class of Commitments (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.06(k) 8 for so long as such LC L/C Exposure is outstanding;
(iii) if a the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s LC L/C Exposure pursuant to clause (ii) above, such the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.12(b3.3(a) with respect to such Defaulting Lender’s LC L/C Exposure during the period such Defaulting Lender’s LC L/C Exposure is Cash Collateralizedcash collateralized;
(iv) if the LC L/C Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(aSection 2.5(a) and 2.12(bSection 3.3(a) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Revolving Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC L/C Exposure is neither reallocated nor Cash Collateralized cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any the Issuing Bank Lender or any other Lender hereunder, all letter of credit 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 applicable Issuing Bank Lender until and to the extent that such LC L/C Exposure is reallocated and/or Cash Collateralizedcash collateralized; and
(d) so long as such Lender is a Defaulting Lender, the applicable ▇▇▇▇▇ Swingline Lender shall be required to fund any Swingline Loan and no Issuing Bank under the applicable Facility Lender shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding L/C Exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or Cash Collateral cash collateral will be provided by the applicable Borrower(s) 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 inSwingline Exposure related to any such newly made Swingline Loan or L/C Exposure related to any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i2.19(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to the Parent of any Lender shall occur following the Second Amendment Effective Date and for so long as such event shall continue or (ii) any Issuing Bank or the Swingline Lender has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, such Issuing Bank shall not be required to issue, amend or increase any Letter of Credit and the Swingline Lender shall not be required to fund any Swingline Loan, unless such Issuing Bank or the Swingline Lender, as the case may be, shall have entered into arrangements with the Borrowers or such Lender, satisfactory to such Issuing Bank or the Swingline Lender, as the case may be, to defease any risk in respect of such Lender hereunder. In the event that each of the Administrative Agent, the Borrowers, the applicable Issuing Banks and, in the case of the U.S. Facility, the Swingline Lender agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and/or LC Exposure of the Lenders under the applicable Facility shall be readjusted to reflect the inclusion of such Lender’s Commitment and on the date of such readjustment such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage.
Appears in 1 contract
Sources: Credit Agreement (Air Lease Corp)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) except to the extent provided to the contrary in paragraph (iv) of Section 2.20(c) below, facility fees shall cease to accrue on the unfunded portion of the Commitments of such Defaulting Lender pursuant to Section 2.12(a)) on the unused amount of the Commitment of such Defaulting Lender;
(b) such Defaulting Lender shall not have the right to vote on any issue on which voting is required (other than to the extent expressly provided in Section 9.02(b)) and the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or the Supermajority Revolving any other requisite Lenders have taken or may take any action hereunderhereunder 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 a such Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the nonNon-Defaulting Lenders of the applicable Class in accordance with their respective Applicable Percentages but only to the extent (x) that the sum of all nonNon-Defaulting Lenders’ Revolving Credit Exposures under such Class of Commitments plus such Defaulting Lender’s Swingline Exposure and LC Exposure under such Class of Commitments does not exceed the total sum of all nonNon-Defaulting Lenders’ Commitments of such Class, (y) no non-Defaulting Lender’s Revolving Exposure under such Class of Commitments is increased above such Lender’s Commitment of such Class as a result thereof and (z) no Event of Default has then occurred and is continuingCredit Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the applicable Borrower shall within one two Business Day Days following notice by the Administrative Agent (xA) first, in prepay the case portion of the U.S. Borrower, prepay such Defaulting Lender’s Swingline Exposure that has not been reallocated and (yB) second, Cash Collateralize, cash collateralize for the benefit of the applicable Issuing Bank, such Borrowers’ obligations corresponding to Banks the portion of such Defaulting Lender’s LC Exposure under the applicable Class of Commitments (after giving effect to any partial reallocation pursuant to clause (i) above) that has not been reallocated in accordance with the procedures set forth in Section 2.06(k2.06(i) for so long as such LC Exposure is outstanding;
(iii) if a the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, such the Borrower shall not be required to pay any participation fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such portion of such Defaulting Lender’s LC Exposure during the period for so long as such Defaulting Lender’s LC Exposure is Cash Collateralizedcash collateralized;
(iv) if any portion of the LC Exposure of the non-such Defaulting Lenders Lender is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(b) shall be adjusted in accordance with to give effect to such non-Defaulting Lenders’ Applicable Percentagesreallocation; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor Cash Collateralized cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all letter facility fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of credit such Defaulting Lender’s Commitment utilized by such LC Exposure) and participation fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or Cash Collateralizedcash collateralized; and
(d) so long as such Lender is a Defaulting Lender, the applicable Issuing Bank under the applicable Facility Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend amend, renew or increase extend any Letter of Credit, unless in each case it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure or LC Exposure, as applicable, will be 100% fully covered by the Commitments of the nonNon-Defaulting Lenders and/or Cash Collateral will be cash collateral provided by the applicable Borrower(s) Borrower in accordance with Section 2.20(c), and participating interests in any such newly made funded Swingline Loan or newly issued in any such issued, amended, renewed or increased extended Letter of Credit shall will be allocated among nonthe Non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein). If In the event that (ix) a Bankruptcy Event with respect to the a Lender Parent of any Lender shall occur have occurred following the Second Amendment Effective Date and for so long as such event Bankruptcy Event shall continue or (iiy) the Swingline Lender or any Issuing Bank or the Swingline Lender has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, such Issuing Bank shall not be required to issue, amend or increase any Letter of Credit and 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 or the Swingline LenderBank, as the case may be, shall have entered into arrangements with the Borrowers Borrower or such Lender, Lender satisfactory to the Swingline Lender or such Issuing Bank or the Swingline LenderBank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that each of the Administrative Agent, the Borrowers, the applicable Issuing Banks and, in the case of the U.S. FacilityBorrower, the Swingline Lender agrees and each Issuing Bank each agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and/or and LC Exposure of the Lenders under the applicable Facility shall be readjusted to reflect the inclusion of such Lender’s Commitment and on the such date of such readjustment such Lender shall purchase at par such of the Revolving Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage. Subject to Section 9.16, no reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender 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.
Appears in 1 contract
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) a. fees shall cease to accrue on the unfunded portion of the Commitments Commitment of such Defaulting Lender pursuant to Section 2.12(a);
(b) such Defaulting Lender shall not have the right to vote on any issue on which voting is required (other than to the extent expressly provided in Section 9.02(b)) and b. the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or the Supermajority Revolving Lenders have taken or may take any action hereunderhereunder (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender affected thereby;
(c) c. if any Swingline Exposure or LC Exposure exists at the time a such Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders of the applicable Class in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures under such Class of Commitments plus such Defaulting Lender’s Swingline Exposure and LC Exposure under such Class of Commitments does not exceed the total of all non-Defaulting Lenders’ Commitments of such Class, (y) no non-Defaulting Lender’s Revolving Exposure under such Class of Commitments is increased above such Lender’s Commitment of such Class as a result thereof and (z) no Event of Default has then occurred and is continuingCommitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the applicable Borrower shall within one (1) Business Day following notice by the Administrative Agent (x) first, in the case of the U.S. Borrower, prepay such Swingline Exposure and (y) second, Cash Collateralize, cash collateralize for the benefit of the applicable relevant Issuing Bank, such Borrowers’ Banks only the Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure under the applicable Class of Commitments (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.06(k2.06(j) for so long as such LC Exposure is outstanding;
(iii) if a the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, such the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is Cash Collateralizedcash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and Section 2.12(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor Cash Collateralized cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all facility fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable relevant Issuing Bank Banks until and to the extent that such LC Exposure is reallocated and/or Cash Collateralizedcash collateralized; and
(d) so long as such Lender is a Defaulting Lender, the applicable Issuing Bank under the applicable Facility shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or Cash Collateral will be provided by the applicable Borrower(s) in accordance with Section 2.20(c), and participating interests in any such newly made Swingline Loan or newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to the Parent of any Lender shall occur following the Second Amendment Effective Date and for so long as such event shall continue or (ii) any Issuing Bank or the Swingline Lender has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, such Issuing Bank shall not be required to issue, amend or increase any Letter of Credit and the Swingline Lender shall not be required to fund any Swingline Loan, unless such Issuing Bank or the Swingline Lender, as the case may be, shall have entered into arrangements with the Borrowers or such Lender, satisfactory to such Issuing Bank or the Swingline Lender, as the case may be, to defease any risk in respect of such Lender hereunder. In the event that each of the Administrative Agent, the Borrowers, the applicable Issuing Banks and, in the case of the U.S. Facility, the Swingline Lender agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and/or LC Exposure of the Lenders under the applicable Facility shall be readjusted to reflect the inclusion of such Lender’s Commitment and on the date of such readjustment such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage.
Appears in 1 contract
Sources: Credit Agreement (Intuit Inc)
Defaulting Lenders. (a) Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(ai) facility fees shall cease continue to accrue on the unfunded portion amount of the Commitments of such Defaulting Lender pursuant to Section 2.12(a2.10(a) only to the extent of the Credit Exposure of such Defaulting Lender (excluding any portion thereof constituting LC Exposure of such Defaulting Lender that is subject to reallocation under clause (iii)(A) below);
(bii) such Defaulting Lender shall not have the right to vote on any issue on which voting is required (other than to the extent expressly provided in Section 9.02(b)) Commitments and the Commitment and Revolving Exposure Credit Exposures of such Defaulting Lender shall not be included in determining whether the Required Lenders or the Supermajority Revolving Lenders have taken or may take any action hereunderhereunder (including any consent to any amendment, waiver or other modification pursuant to Section 9.04); provided, that this clause (b) shall not apply in the case of an amendment, waiver or other modification requiring the consent of each Lender or each Lender affected thereby;
(ciii) if any Swingline Exposure or LC Exposure exists at the time a such Lender becomes a Defaulting Lender then:
(iA) all or any part of the Swingline Exposure and Tranche One LC Exposure or Tranche Two LC Exposure, as the case may be, of such Defaulting Lender shall be reallocated among the non-Defaulting Tranche One Lenders of the applicable Class or non-Defaulting Tranche Two Lenders, as applicable, in accordance with proportion to their respective Applicable Tranche One Percentages or Tranche Two Percentages, but only to the extent (x1) the sum of all non-Defaulting Tranche One Lenders’ Revolving Tranche One Credit Exposures under such Class of Commitments plus such Defaulting Lender’s Swingline Exposure and Tranche One LC Exposure under such Class of Commitments does not exceed the total of all non-Defaulting Tranche One Lenders’ Commitments of such ClassTranche One Commitments, (y2) no the sum of all non-Defaulting Tranche Two Lenders’ Tranche Two Credit Exposures plus such Defaulting Lender’s Revolving Tranche Two LC Exposure under such Class does not exceed the total of all non-Defaulting Tranche Two Lenders’ Tranche Two Commitments is increased above such Lender’s Commitment of such Class as a result thereof and (z3) no Event of Default has then occurred and is continuingcontinuing at the time of such reallocation;
(iiB) if the reallocation reallocations described in clause (iA) above cannot, or can only partially, be effected, the applicable Borrower Borrowers shall within one Business Day following notice by the Administrative Agent (x) first, in the case of the U.S. Borrower, prepay such Swingline Exposure and (y) second, Cash Collateralize, for the benefit of the applicable Issuing Bank, such Borrowers’ obligations corresponding to such Defaulting Lender’s LC Exposure under the applicable Class of Commitments (after giving effect to any partial reallocation pursuant to clause (iA) above) cash collateralize for the benefit of the Issuing Banks the Borrowers’ obligations corresponding to such Defaulting Lender’s LC Exposure in accordance with the procedures set forth in Section 2.06(k2.04(i) for so long as such LC Exposure is outstanding;
(iiiC) if a Borrower Cash Collateralizes the Borrowers cash collateralize any portion of such Defaulting Lender’s LC Exposure pursuant to clause (iiB) above, such Borrower the Borrowers shall not be required to pay any 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 during the period such Defaulting Lender’s LC Exposure portion is Cash Collateralizedcash collateralized;
(ivD) if the LC Exposure of the non-such Defaulting Lenders 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 2.10(b) shall be adjusted in accordance with the amounts of such LC Exposure allocated to the non-Defaulting Lenders’ Applicable Percentages; and
(vE) if all or any portion of such Defaulting Lender’s LC Exposure that is subject to reallocation pursuant to clause (A) above is 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 Banks or any other Lender hereunder, all facility fees that otherwise would have been payable under Section 2.10(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(b2.10(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank Banks (and allocated among them ratably based on the amount of such portion of the LC Exposure of such Defaulting Lender attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or Cash Collateralized; and
(d) so long as such Lender is a Defaulting Lender, the applicable Issuing Bank under the applicable Facility shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or Cash Collateral will be provided by the applicable Borrower(s) in accordance with Section 2.20(c), and participating interests in any such newly made Swingline Loan or newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to the Parent of any Lender shall occur following the Second Amendment Effective Date and for so long as such event shall continue or (ii) any Issuing Bank or the Swingline Lender has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, such Issuing Bank shall not be required to issue, amend or increase any Letter of Credit and the Swingline Lender shall not be required to fund any Swingline Loan, unless such Issuing Bank or the Swingline Lender, as the case may be, shall have entered into arrangements with the Borrowers or such Lender, satisfactory to such Issuing Bank or the Swingline Lender, as the case may be, to defease any risk in respect of such Lender hereunder. In the event that each of the Administrative Agent, the Borrowers, the applicable Issuing Banks and, in the case of the U.S. Facility, the Swingline Lender agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and/or LC Exposure of the Lenders under the applicable Facility shall be readjusted to reflect the inclusion of such Lender’s Commitment and on the date of such readjustment such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentagecash collateralized.
Appears in 1 contract
Sources: Credit Agreement (DOVER Corp)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) facility fees shall cease to accrue on the unfunded portion of the Commitments Commitment of such Defaulting Lender pursuant to Section 2.12(a)Lender;
(b) such Defaulting Lender shall not have the right to vote on any issue on which voting is required (other than to the extent expressly provided in Section 9.02(b)) and the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or the Supermajority Revolving Lenders have taken or may take any action hereunder;
(c) if any Swingline Exposure or LC Exposure exists shall exist at the time 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 Letters of such Defaulting Lender Credit shall be reallocated among the non-Defaulting Lenders of the applicable Class in accordance with their respective Applicable Percentages but only to the extent (xa)
(1) the sum of all non-Defaulting Lenders’ Revolving Exposures under such Class of Commitments Credit Exposure plus such Defaulting Lender’s Swingline Exposure Lenders’ Loans and LC Exposure under such Class participations in and commitments with respect to Loans and Letters of Commitments Credit does not exceed the total of all non-Defaulting Lenders’ Lender’s Commitments of such Class, and (y2) no individual non-Defaulting Lender’s Revolving Credit Exposure under plus its Applicable Percentage of such Class Defaulting Lender’s Loans and participations in and commitments with respect to Loans and Letters of Commitments is increased above Credit exceeds such non-Defaulting Lender’s Commitment of such Class as a result thereof and (zb) no Event the conditions set forth in Section 4.02 are satisfied at such time; provided, that the participation fees with respect to Letters of Default has then occurred and is continuing;Credit 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 applicable Borrower Borrowers shall within one (1) Business Day following notice by the Administrative Agent (x) first, in the case of the U.S. Borrower, prepay such Swingline Exposure and (y) second, Cash Collateralize, for the benefit of the applicable Issuing Bank, such Borrowers’ obligations corresponding to cash collateralize such Defaulting Lender’s Applicable Percentage of the LC Exposure under the applicable Class of Commitments (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.06(k2.05(i) for so long as such Facility LC Exposure is outstanding;
(iii) if a Borrower Cash Collateralizes the Borrowers cash collateralize any portion of such Defaulting Lender’s Facility LC Exposure pursuant to clause (ii) above, such Borrower the Borrowers shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such Defaulting Lender’s Facility LC Exposure during the period such Defaulting Lender’s Facility LC Exposure is Cash Collateralized;cash collateralized; and
(iv) if the any Defaulting Lender’s Facility LC Exposure of the non-Defaulting Lenders 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 in accordance with such non-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 Lender hereunder, all letter fees with respect to Letters of credit fees Credit payable under Section 2.12(b) with respect to such Defaulting Lender’s Facility LC Exposure shall be payable to the applicable Issuing Bank until such Facility LC Exposure is reallocated and/or Cash Collateralized; andcash collateralized;
(d) so long as such any Lender is a Defaulting Lender, the applicable no Issuing Bank under the applicable Facility shall not be required to issueissue or renew, amend extend, increase, decrease or increase otherwise modify any Letter of Credit, Credit unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or Cash Collateral will be cash collateral provided by the applicable Borrower(s) Borrowers in accordance with Section 2.20(c2.21(c), and participating interests in ; and
(e) any such newly made Swingline Loan or newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i) (and amount payable to such Defaulting Lender shall not participate therein). If hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.18 but excluding Section 2.19) shall, in lieu of being distributed to such Defaulting Lender, be retained by the Administrative Agent in a segregated account and, subject to any applicable requirements of law, be applied at such time or times as may be determined by the Administrative Agent (i) a Bankruptcy Event with respect first, to the Parent payment of any amounts owing by such Defaulting Lender shall occur following to the Second Amendment Effective Date and for so long as such event shall continue or Administrative Agent hereunder, (ii) second, to the payment of any amounts owing by such Defaulting Lender to an Issuing Bank hereunder, (iii) third, to the funding of any Revolving Loan or the Swingline Lender has a good faith belief that funding or cash collateralization of any Lender has defaulted participating interest in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, such Issuing Bank shall not be required to issue, amend or increase 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 the Administrative Agent, (iv) fourth, if so determined by the Administrative Agent and the Swingline Borrowers, held in such account as cash collateral for future funding obligations of the Defaulting Lender shall not be required under this Agreement, (v) fifth, 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 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 Borrowers as a result of any judgment of a court of competent jurisdiction obtained by any Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, (vii) seventh, if so determined by the Administrative Agent, distributed to the Lenders other than the Defaulting Lender until the ratio of the Revolving Credit Exposure of such Lenders to the aggregate Revolving Credit Exposure of all Lenders equals such ratio immediately prior to the Defaulting Lender’s failure to fund any Swingline Loanportion of any Loans or participations in Letters of Credit and (viii) eighth, unless to 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 of the Borrowers for Letters of Credit with respect to which an Issuing Bank has funded its participation obligations, such payment shall be applied solely to prepay the Loans of, and Letter of Credit reimbursement obligations owed to, all Lenders that are not Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans or the Swingline Letter of Credit reimbursement obligations owed to any Defaulting Lender, as the case may be, shall have entered into arrangements with the Borrowers or such Lender, satisfactory to such Issuing Bank or the Swingline Lender, as the case may be, to defease any risk in respect of such Lender hereunder. In the event that each of the Administrative Agent, the Borrowers, Borrowers and the applicable Issuing Banks and, in the case of the U.S. Facility, the Swingline Lender agrees each agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and/or Facility LC Exposure of the Lenders under the applicable Facility shall be readjusted to reflect the inclusion of such Lender’s Commitment and on the such date of such readjustment such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage.hold
Appears in 1 contract
Sources: Credit Agreement (Brown Forman Corp)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) Commitment fees shall cease to accrue on the unfunded portion of the Commitments Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a);
(b) such Defaulting Lender shall not have the right to vote on any issue on which voting is required (other than to the extent expressly provided in Section 9.02(b)) and the Revolving Commitment and Revolving Exposure Exposures of such Defaulting Lender shall not be included in determining whether the Required all Lenders or the Supermajority Revolving Required Lenders have taken or may take any action hereunderhereunder (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided that (i) such Defaulting Lender’s Commitment may not be increased or extended without the consent of such Defaulting Lender and (ii) the principal amount of, or interest or fees payable on, Loans or LC Exposures may not be reduced or excused and the scheduled date of payment may not be postponed as to such Defaulting Lender without such Defaulting Lender’s consent;
(c) if any Swingline Exposure or LC Exposure exists at the time a such Lender becomes a Defaulting Lender then:
(i) all or any part of such Lender’s Applicable Percentage of the Swingline Exposure and LC Exposure (other than the portion of such Defaulting Lender Swingline Exposure referred to in clause (b) of the definition thereof) shall be automatically reallocated among the non-Defaulting Lenders of the applicable Class in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Exposures under such Class of Commitments plus such Defaulting Lender’s Applicable Percentage of the Swingline Exposure and LC Exposure under such Class of Commitments does not exceed the total of all non-Defaulting Lenders’ Revolving Commitments of such Class, and (y) no non-Defaulting Lender’s Revolving Exposure under the conditions set forth in Section 4.02 are satisfied at such Class of Commitments is increased above such Lender’s Commitment of such Class as a result thereof and (z) no Event of Default has then occurred and is continuingtime;
(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 (x) first, in the case of the U.S. Borrower, prepay such Swingline Exposure and (y) second, Cash Collateralize, for the benefit of the applicable Issuing Bank, such Borrowers’ obligations corresponding to cash collateralize such Defaulting Lender’s LC Exposure under the applicable Class of Commitments (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.06(k) Article VII for so long as such LC Exposure is outstanding;
(iii) if a the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, such the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is Cash Collateralizedcash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections Section 2.12(a) and Section 2.12(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor Cash Collateralized cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank the LC Issuers or any other Lender hereunder, all letter of credit fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank relevant LC Issuer(s) until and to the extent that such Defaulting Lender’s LC Exposure is reallocated and/or Cash Collateralized; andcash collateralized.
(d) so long as such any Lender is a Defaulting Lender, the applicable Issuing Bank under Swingline Lender shall not be required to fund any Swingline Loan and the applicable Facility LC Issuer shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or Cash Collateral cash collateral will be provided by the applicable Borrower(s) Borrower in accordance with Section 2.20(c2.05(j), and participating interests in any such newly made Swingline Loan or newly issued or increased Letter of Credit or newly made Swingline Loan shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender Lenders shall not participate therein). If ; and
(e) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.18(d) but excluding Section 2.19(b)) shall, in lieu of being distributed to such Defaulting Lender, be retained by the Administrative Agent in a segregated account and, subject to any applicable requirements of law, be applied at such time or times as may be determined by the Administrative Agent (i) first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to the LC Issuer or Swingline Lender hereunder, (iii) third, if so determined by the Administrative Agent or requested by an LC Issuer or Swingline Lender, held in such account as cash collateral for future funding obligations of the Defaulting Lender in respect of any existing or future participating interest in any Swingline Loan or Letter of Credit, (iv) 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 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 in respect of any Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders or an LC Issuer or Swingline Lender as a Bankruptcy Event result of any judgment of a court of competent jurisdiction obtained by any Lender or such LC Issuer or Swingline Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, (vii) seventh, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, and (viii) eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction;, provided, with respect to this clause (viii), that if such payment is (x) a prepayment of the Parent principal amount of any Lender shall occur following the Second Amendment Effective Date and for so long as such event shall continue Loans or (ii) any Issuing Bank or the Swingline Lender has a good faith belief that any Lender has defaulted in fulfilling its reimbursement obligations under one or more other agreements in which such Lender commits to extend credit, such Issuing Bank shall not be required to issue, amend or increase any Letter of Credit and the Swingline Lender shall not be required to fund any Swingline Loan, unless such Issuing Bank or the Swingline Lender, as the case may be, shall have entered into arrangements with the Borrowers or such Lender, satisfactory to such Issuing Bank or the Swingline Lender, as the case may be, to defease any risk in respect of LC Disbursements which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 4.02 are satisfied, such 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.
(f) If at any time cash collateral provided by the Borrower in respect of Letters of Credit pursuant to Section 2.20(c)(ii) exceeds the amount of cash collateral required pursuant to such section then, provided that no Event of Default has occurred and is continuing, such excess amount shall be returned to the Borrower within three Business Days after the Borrower’s written request therefor. In the event that each of the Administrative Agent, the BorrowersBorrower, the applicable Issuing Banks and, in the case of the U.S. Facility, each relevant LC Issuer and the Swingline Lender each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Lenders’ Swingline Exposure and/or and LC Exposure of the Lenders under the applicable Facility shall be readjusted to reflect the inclusion of such Lender’s Commitment and on the such date of such readjustment such Lender shall purchase at par such of the relevant Class of Revolving Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage.
Appears in 1 contract
Sources: Credit Agreement (Alaska Communications Systems Group Inc)
Defaulting Lenders. (a) Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(ai) fees shall cease to accrue on the unfunded portion of the Commitments of such no Defaulting Lender shall be entitled to receive any unused commitment fee pursuant to Section 2.12(a) for any period during which that Lender is a Defaulting Lender (and the Obligors shall not be required to pay at any time any such fee that otherwise would have been required to have been paid during such period to that Defaulting Lender);
(bii) such Defaulting Lender shall not have the right to vote on any issue on which voting is required (other than to the extent expressly provided in Section 9.02(b)) Commitments and the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or the Supermajority Revolving Lenders have taken or may take any action hereunderhereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.02);
(ciii) if any Swingline Exposure or LC Exposure exists at the time a such Lender becomes a Defaulting Lender then:
(iA) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders of the applicable Class that are Lenders in accordance with their respective Applicable Percentages (calculated without regard to such Defaulting Lender’s Commitment) but only to the extent (x) that the sum of all such non-Defaulting Lenders’ Revolving Credit Exposures under such Class of Commitments plus such Defaulting Lender’s Swingline Exposure and LC Exposure under such Class of Commitments does not exceed the total of all non-Defaulting Lenders’ Commitments Commitments; provided that no reallocation hereunder shall constitute a waiver or release of any claim of any party hereto against a Defaulting Lender arising from that ▇▇▇▇▇▇ having been a Defaulting Lender, including any claim of a non-Defaulting Lender as a result of such Class, (y) no non-Defaulting Lender’s Revolving Exposure under increased exposure following such Class of Commitments is increased above such Lender’s Commitment of such Class as a result thereof and (z) no Event of Default has then occurred and is continuingreallocation;
(iiB) if the reallocation described in clause (iA) above cannot, or can only partially, be effected, the applicable Borrower Obligors shall within one Business Day following notice by the Administrative Agent Agent, without prejudice to any right or remedy available to them hereunder or under law, (x) first, in the case of the U.S. Borrower, prepay such Swingline Exposure and (y) second, Cash Collateralize, cash collateralize for the benefit of the applicable Issuing Bank, such BorrowersBanks only the Obligors’ obligations corresponding to such Defaulting Lender’s LC Exposure under the applicable Class of Commitments (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.06(k2.06(j) for so long as such LC Exposure is outstanding;
(iiiC) if a Borrower Cash Collateralizes an Obligor cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (iiB) above, such Borrower Obligor shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.12(b2.12(c) with respect to such 76 Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is Cash Collateralizedcash collateralized;
(ivD) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (iA) above, then the fees payable to the Lenders pursuant to Sections Section 2.12(a) and Section 2.12(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; and
(vE) if all or any portion of such Defaulting Lender’s LC Exposure is 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 Banks or any other Lender hereunder, all letter of credit fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank Banks until and to the extent that such LC Exposure is reallocated and/or Cash Collateralized; andcash collateralized.
(div) so long as such Lender is a Defaulting Lender, the applicable Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Bank under the applicable Facility Banks shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or Cash Collateral cash collateral will be provided by the applicable Borrower(s) Obligors in accordance with Section 2.20(c2.20(a)(iii), and participating interests in any such newly made Swingline Loan or any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i2.20(a)(iii)(C) (and such Defaulting Lender shall not participate therein). If .
(ib) a Bankruptcy Event with respect to the Parent of any Lender shall occur following the Second Amendment Effective Date and for so long as such event shall continue or (ii) any Issuing Bank or the Swingline Lender has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, such Issuing Bank shall not be required to issue, amend or increase any Letter of Credit and the Swingline Lender shall not be required to fund any Swingline Loan, unless such Issuing Bank or the Swingline Lender, as the case may be, shall have entered into arrangements with the Borrowers or such Lender, satisfactory to such Issuing Bank or the Swingline Lender, as the case may be, to defease any risk in respect of such Lender hereunder. In the event that each of the Administrative Agent, the Borrowers, the applicable Issuing Banks and, in the case of the U.S. FacilityBorrower, the Swingline Lender and each Issuing Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and/or and LC Exposure of the Lenders under the applicable Facility shall be readjusted to reflect the inclusion of such Lender’s Commitment and on the such date of such readjustment such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of any Loan Party while that Lender was a Defaulting Lender; and provided, further, that no change of a Lender’s status from Defaulting Lender to Lender shall constitute a waiver or release of any claim of any party hereto arising from that ▇▇▇▇▇▇ having been a Defaulting Lender.
(c) 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 10.08 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 or Swingline Lender hereunder; third, to cash collateralize the Issuing Banks’ LC Exposure with respect to such Defaulting Lender; fourth, as the applicable Obligor 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 applicable Obligor, 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 77
Appears in 1 contract
Sources: Revolving Credit Agreement (Millicom International Cellular Sa)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) Commitment fees shall cease to accrue on the unfunded portion of the Commitments Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a);
(b) such Defaulting Lender shall not have the right to vote on any issue on which voting is required (other than to the extent expressly provided in Section 9.02(b)) and the Revolving Commitment and Revolving Exposure Exposures of such Defaulting Lender shall not be included in determining whether the Required all Lenders or the Supermajority Revolving Required Lenders have taken or may take any action hereunderhereunder (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided that (i) such Defaulting Lender’s Commitment may not be increased or extended without the consent of such Defaulting Lender and (ii) the principal amount of, or interest or fees payable on, Loans or LC Exposures may not be reduced or excused and the scheduled date of payment may not be postponed as to such Defaulting Lender without such Defaulting Lender’s consent;
(c) if any Swingline Exposure or LC Exposure exists at the time a such Lender becomes a Defaulting Lender then:
(i) all or any part of such Lender’s Applicable Percentage of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be automatically reallocated among the non-Defaulting Lenders of the applicable Class in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Exposures under such Class of Commitments plus such Defaulting Lender’s Applicable Percentage of the Swingline Exposure and LC Exposure under such Class of Commitments does not exceed the total of all non-Defaulting Lenders’ Revolving Commitments of such Class, and (y) no non-Defaulting Lender’s Revolving Exposure under the conditions set forth in Section 4.02 are satisfied at such Class of Commitments is increased above such Lender’s Commitment of such Class as a result thereof and (z) no Event of Default has then occurred and is continuingtime;
(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 (x) first, in the case of the U.S. Borrower, prepay such Swingline Exposure and (y) second, Cash Collateralize, for the benefit of the applicable Issuing Bank, such Borrowers’ obligations corresponding to cash collateralize such Defaulting Lender’s LC Exposure under the applicable Class of Commitments (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.06(k) Article VII for so long as such LC Exposure is outstanding;
(iii) if a the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, such the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is Cash Collateralizedcash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections Section 2.12(a) and Section 2.12(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor Cash Collateralized cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank the LC Issuers or any other Lender hereunder, all letter of credit fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank relevant LC Issuer(s) until and to the extent that such Defaulting Lender’s LC Exposure is reallocated and/or Cash Collateralized; andcash collateralized.
(d) so long as such any Lender is a Defaulting Lender, the applicable Issuing Bank under Swingline Lender shall not be required to fund any Swingline Loan and the applicable Facility LC Issuer shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or Cash Collateral cash collateral will be provided by the applicable Borrower(s) Borrower in accordance with Section 2.20(c2.05(j), and participating interests in any such newly made Swingline Loan or newly issued or increased Letter of Credit or newly made Swingline Loan shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender Lenders shall not participate therein). If ; and
(e) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.18(d) but excluding Section 2.19(b)) shall, in lieu of being distributed to such Defaulting Lender, be retained by the Administrative Agent in a segregated account and, subject to any applicable requirements of law, be applied at such time or times as may be determined by the Administrative Agent (i) first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to the LC Issuer or Swingline Lender hereunder, (iii) third, if so determined by the Administrative Agent or requested by an LC Issuer or Swingline Lender, held in such account as cash collateral for future funding obligations of the Defaulting Lender in respect of any existing or future participating interest in any Swingline Loan or Letter of Credit, (iv) 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 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 in respect of any Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders or an LC Issuer or Swingline Lender as a Bankruptcy Event result of any judgment of a court of competent jurisdiction obtained by any Lender or such LC Issuer or Swingline Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, (vii) seventh, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, and (viii) eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction;, provided, with respect to this clause (viii), that if such payment is (x) a prepayment of the Parent principal amount of any Lender shall occur following the Second Amendment Effective Date and for so long as such event shall continue Loans or (ii) any Issuing Bank or the Swingline Lender has a good faith belief that any Lender has defaulted in fulfilling its reimbursement obligations under one or more other agreements in which such Lender commits to extend credit, such Issuing Bank shall not be required to issue, amend or increase any Letter of Credit and the Swingline Lender shall not be required to fund any Swingline Loan, unless such Issuing Bank or the Swingline Lender, as the case may be, shall have entered into arrangements with the Borrowers or such Lender, satisfactory to such Issuing Bank or the Swingline Lender, as the case may be, to defease any risk in respect of LC Disbursements which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 4.02 are satisfied, such 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.
(f) If at any time cash collateral provided by the Borrower in respect of Letters of Credit pursuant to Section 2.20(c)(ii) exceeds the amount of cash collateral required pursuant to such section then, provided that no Event of Default has occurred and is continuing, such excess amount shall be returned to the Borrower within three Business Days after the Borrower’s written request therefor. In the event that each of the Administrative Agent, the BorrowersBorrower, the applicable Issuing Banks and, in the case of the U.S. Facility, each relevant LC Issuer and the Swingline Lender each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Lenders’ Swingline Exposure and/or and LC Exposure of the Lenders under the applicable Facility shall be readjusted to reflect the inclusion of such Lender’s Commitment and on the such date of such readjustment such Lender shall purchase at par such of the Revolving Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage.
Appears in 1 contract
Sources: Credit Agreement (Alaska Communications Systems Group Inc)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) : fees shall cease to accrue on the unfunded portion of the Commitments Commitment of such Defaulting Lender pursuant to Section 2.12(a);
(b) such Defaulting Lender shall not have the right to vote on any issue on which voting is required (other than to the extent expressly provided in Section 9.02(b)) and ; the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or the Supermajority Revolving Lenders have taken or may take any action hereunder;
hereunder (cincluding any consent to any amendment, waiver or other modification pursuant to Section 10.02); provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender affected thereby; if any Swingline Exposure or LC Exposure exists at the time a such Lender becomes a Defaulting Lender then:
(i) : all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders of the applicable Class in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Exposures under Credit Exposure (after giving effect to such Class of Commitments plus such Defaulting Lender’s Swingline Exposure and LC Exposure under such Class of Commitments reallocation) does not exceed the total of all non-Defaulting Lenders’ Commitments of such Class, (y) no non-Defaulting Lender’s Revolving Exposure under such Class of Commitments is increased above such Lender’s Commitment of such Class as a result thereof and (z) no Event of Default has then occurred and is continuing;
(ii) Commitments; 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 (x) first, in the case of the U.S. Borrower, prepay such Swingline Exposure and (y) secondAgent, Cash Collateralize, Collateralize for the benefit of the applicable Issuing Bank, such Borrowers’ Lenders only the Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure under the applicable Class of Commitments (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.06(k2.04(k) for so long as such LC Exposure is outstanding;
(iii) ; if a the Borrower Cash Collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, such the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.12(b2.12(b)(i) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is Cash Collateralized;
(iv) ; if the LC Exposure of such Defaulting Lender is reallocated to the non-Defaulting 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(b)(i) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable PercentagesPercentages after giving effect to the reallocation of such Defaulting Lender’s LC Exposure pursuant to clause (i) above; and
(v) and 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 Lender or any other Lender hereunder, all letter of credit fees payable under Section 2.12(b2.12(b)(i) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank Lenders until and to the extent that such LC Exposure is reallocated and/or Cash Collateralized; and
(d) and so long as such Lender is a Defaulting Lender, the applicable no Issuing Bank under the applicable Facility Lender shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or Cash Collateral cash collateral will be provided by the applicable Borrower(s) Borrower in accordance with Section 2.20(c), and participating interests in any such newly made Swingline Loan or newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein). If ;
(i) a Bankruptcy Event or a Bail-In Action with respect to the a Lender Parent of any Lender shall occur following the Second Amendment Third Restatement Effective Date and for so long as such event shall continue or (ii) any Issuing Bank or the Swingline Lender has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, such Issuing Bank Lender shall not be required to issue, amend or increase any Letter of Credit and the Swingline Lender shall not be required to fund any Swingline LoanCredit, unless such Issuing Bank or the Swingline Lender, as the case may be, Lender shall have entered into arrangements with the Borrowers Borrower or such Lender, satisfactory to such Issuing Bank or the Swingline Lender, as the case may be, Lender to defease any risk to it in respect of such Lender hereunder. In the event that each of the Administrative Agent, the Borrowers, Borrower and the applicable Issuing Banks and, in the case of the U.S. Facility, the Swingline Lender Lenders each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and/or LC Exposure of the Lenders under the applicable Facility shall be readjusted to reflect the inclusion of such Lender’s Commitment and on the such date of such readjustment such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage.
Appears in 1 contract
Sources: Credit Agreement (Griffon Corp)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) fees shall cease to accrue on the unfunded unused portion of the Commitments Commitment of such Defaulting Lender pursuant to Section 2.12(a2.08(a);
(b) such Defaulting Lender shall not have the right to vote on any issue on which voting is required (other than to the extent expressly provided in Section 9.02(b)) and the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or the Supermajority Revolving Lenders have taken or may take any action hereunderhereunder (including any consent to any amendment, waiver or other modification pursuant to Section 9.05); provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of each Lender or each Lender affected thereby;
(c) if any Swingline Exposure or LC Exposure Letter of Credit Liabilities exists at the time a such Lender becomes a Defaulting Lender then:
(i) all or any part so long as no Default has occurred and is continuing, the Letter of the Swingline Exposure and LC Exposure Credit Liabilities of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders of the applicable Class in accordance with their respective Applicable Percentages but only to the extent (x) that the sum of all each such non-Defaulting Lenders’ Revolving Exposures under such Class of Commitments Lender’s Committed Loans plus such non-Defaulting Lender’s Swingline Exposure and LC Exposure under Letter of Credit Liabilities (after giving effect to such Class of Commitments does reallocation) would not exceed the total of all non-Defaulting Lenders’ Commitments of such Class, (y) no non-Defaulting Lender’s Revolving Exposure under such Class of Commitments is increased above such Lender’s Commitment of such Class as a result thereof and (z) no Event of Default has then occurred and is continuingCommitment;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the applicable each Borrower shall within one Business Day following notice by the Administrative Agent (x) first, in the case of the U.S. Borrower, prepay such Swingline Exposure and (y) second, Cash Collateralize, Collateralize for the benefit of the applicable Issuing Bank, Lender only such Borrowers’ Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure under the applicable Class Letter of Commitments Credit Liabilities (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.06(k) for so long as such LC Exposure is Letter of Credit Liabilities are outstanding;
(iii) if a Borrower Cash Collateralizes any portion of such Defaulting Lender’s LC Exposure Letter of Credit Liabilities pursuant to clause (ii) above, such Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.12(b2.08(b) with respect to such Defaulting Lender’s LC Exposure Letter of Credit Liabilities during the period such Defaulting Lender’s LC Exposure is Letter of Credit Liabilities are Cash Collateralized;
(iv) if To the LC Exposure extent such Defaulting Lender’s Letter of Credit Liabilities are reallocated to the non-Defaulting 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 in accordance with such non-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 Lender hereunder, all letter of credit fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank until such LC Exposure is reallocated and/or Cash Collateralized; and
(d) so long as such Lender is a Defaulting Lender, the applicable Issuing Bank under the applicable Facility shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or Cash Collateral will be provided by the applicable Borrower(s) in accordance with Section 2.20(c), and participating interests in any such newly made Swingline Loan or newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to the Parent of any Lender shall occur following the Second Amendment Effective Date and for so long as such event shall continue or (ii) any Issuing Bank or the Swingline Lender has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, such Issuing Bank shall not be required to issue, amend or increase any Letter of Credit and the Swingline Lender shall not be required to fund any Swingline Loan, unless such Issuing Bank or the Swingline Lender, as the case may be, shall have entered into arrangements with the Borrowers or such Lender, satisfactory to such Issuing Bank or the Swingline Lender, as the case may be, to defease any risk in respect of such Lender hereunder. In the event that each of the Administrative Agent, the Borrowers, the applicable Issuing Banks and, in the case of the U.S. Facility, the Swingline Lender agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and/or LC Exposure of the Lenders under the applicable Facility shall be readjusted to reflect the inclusion of such Lender’s Commitment and on the date of such readjustment such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage.pursuant to
Appears in 1 contract
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) fees shall cease to accrue on the unfunded portion of the Commitments Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a);
(b) such Defaulting Lender shall not have the right to vote on any issue on which voting is required (other than to the extent expressly provided in Section 9.02(b)) and the Commitment and Revolving Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or the Supermajority Revolving Lenders have taken or may take any action hereunder;
(c) if any Swingline Exposure or LC Exposure exists at the time 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 of the applicable Class in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Exposures under such Class of Commitments plus such Defaulting Lender’s Swingline Exposure and LC Exposure under such Class of Commitments does not exceed the total of all non-Defaulting Lenders’ Commitments of such Class, (y) no non-Defaulting Lender’s Revolving Exposure under such Class of Commitments is increased above such Lender’s Commitment of such Class as a result thereof and (z) no Event of Default has then occurred and is continuingCommitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the applicable Borrower Borrowers shall within one Business Day following notice by the Administrative Agent (x) first, in the case of the U.S. Borrower, prepay such Swingline Exposure and (y) second, Cash Collateralizecash collateralize, for the benefit of the applicable Issuing Bank, such the Borrowers’ obligations corresponding to such Defaulting Lender’s LC Exposure under the applicable Class of Commitments (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.06(k2.06(j) for so long as such LC Exposure is outstanding;
(iii) if a Borrower Cash Collateralizes the Borrowers cash collateralize any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, such Borrower the Borrowers shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is Cash Collateralizedcash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor Cash Collateralized cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any the Issuing Bank or any Lender hereunder, all letter of credit fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank until such LC Exposure is reallocated and/or Cash Collateralizedcash collateralized; and
(d) so long as such Lender is a Defaulting Lender, the applicable Issuing Bank under the applicable Facility shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or Cash Collateral cash collateral will be provided by the applicable Borrower(s) Borrowers in accordance with Section 2.20(c), and participating interests in any such newly made Swingline Loan or newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to the Parent of any Lender shall occur following the Second Amendment Effective Date date hereof and for so long as such event shall continue or (ii) any the Issuing Bank or the Swingline Lender has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, such the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit and the Swingline Lender shall not be required to fund any Swingline LoanCredit, unless such the Issuing Bank or the Swingline Lender, as the case may be, shall have entered into arrangements with the Borrowers or such Lender, satisfactory to such the Issuing Bank or the Swingline Lender, as the case may be, to defease any risk in respect of such Lender hereunder. In the event that each of the Administrative Agent, the Borrowers, the applicable Issuing Banks and, in the case of the U.S. Facility, Bank and the Swingline Lender agrees determine (which determination shall be made in good faith and shall not be unreasonably withheld or delayed) that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and/or and LC Exposure of the Lenders under the applicable Facility shall be readjusted to reflect the inclusion of such Lender’s Revolving Commitment and on the date of such readjustment such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage.
Appears in 1 contract