Canadian LC Participations. (i) Immediately upon each Canadian LC Issuance, the LC Issuer of such Canadian Letter of Credit shall be deemed to have sold and transferred to each Canadian Lender, and each such Canadian Lender (each a “Canadian LC Participant”) shall be deemed irrevocably and unconditionally to have purchased and received from such LC Issuer, without recourse or warranty, an undivided interest and participation (a “Canadian LC Participation”), to the extent of such Canadian Lender’s Canadian Commitment Percentage of the Stated Amount of such Canadian Letter of Credit in effect at such time of issuance, in such Canadian Letter of Credit, each substitute letter of credit, each drawing made thereunder, the obligations of any LC Obligor under this Agreement with respect thereto (although LC Fees relating thereto shall be payable directly to the Revolver Agent for the account of the Canadian Lenders as provided in Section 2.14 and the Canadian LC Participants shall have no right to receive any portion of any fees of the nature contemplated by Section 2.14(e)), the obligations of any LC Obligor under any LC Documents pertaining thereto, and any security for, or guaranty pertaining to, any of the foregoing. (ii) In determining whether to pay under any Canadian Letter of Credit, a LC Issuer shall not have any obligation relative to the Canadian LC Participants other than to determine that any documents required to be delivered under such Canadian Letter of Credit have been delivered and that they appear to comply on their face with the requirements of such Canadian Letter of Credit. Any action taken or omitted to be taken by a LC Issuer under or in connection with any Canadian Letter of Credit, if taken or omitted in the absence of gross negligence or willful misconduct, shall not create for such LC Issuer any resulting liability. In the event that a LC Issuer makes any payment under any Canadian Letter of Credit and the applicable LC Obligor shall not have reimbursed such amount in full to such LC Issuer pursuant to Section 2.07(g), such LC Issuer shall promptly notify the Revolver Agent, and the Revolver Agent shall promptly notify each Canadian LC Participant of such failure, and each Canadian LC Participant shall promptly and unconditionally pay to the Revolver Agent at the Canadian Payment Office for the account of such LC Issuer, the amount of such Canadian LC Participant’s Canadian Commitment Percentage of such payment in Canadian Dollars and in same day funds; provided, however, that no Canadian LC Participant shall be obligated to pay to the Revolver Agent its Canadian Commitment Percentage of such unreimbursed amount for any wrongful payment made by such LC Issuer under a Canadian Letter of Credit as a result of acts or omissions constituting willful misconduct or gross negligence on the part of such LC Issuer as determined by a final non-appealable judgment of a court of competent jurisdiction or if at the time of the issuance or extension of a Canadian Letter of Credit, the applicable LC Issuer had actual written notice from a Borrower or another Canadian Lender that an Event of Default had occurred and was continuing. If the Revolver Agent so notifies any Canadian LC Participant required to fund a payment under a Canadian Letter of Credit prior to 11:00 A.M. (local time at its Notice Office) on any Business Day, such Canadian LC Participant shall make available to the Revolver Agent at the Canadian Payment Office for the account of the relevant LC Issuer such Canadian LC Participant’s Canadian Commitment Percentage of the amount of such payment on such Business Day in same day funds. If and to the extent such Canadian LC Participant shall not have so made its Canadian Commitment Percentage of the amount of such payment available to the Revolver Agent for the account of the relevant LC Issuer, such Participant agrees to pay to the Revolver Agent for the account of such LC Issuer, forthwith on demand, such amount, together with interest thereon, for each day from such date until the date such amount is paid to the Revolver Agent for the account of such LC Issuer at (i) at a rate per annum equal to the Federal Funds Effective Rate during the first three (3) days following the date and (ii) at a rate per annum equal to the rate applicable to Loans under the Canadian Base Rate on and after the fourth day following the date on which the applicable Letter of Credit was drawn. The failure of any Canadian LC Participant to make available to the Revolver Agent for the account of the relevant LC Issuer its Canadian Commitment Percentage of any payment under any Canadian Letter of Credit shall not relieve any other Canadian LC Participant of its obligation hereunder to make available to the Revolver Agent for the account of such LC Issuer its Canadian Commitment Percentage of any payment under any Canadian Letter of Credit on the date required, as specified above, but no Canadian LC Participant shall be responsible for the failure of any other Canadian LC Participant to make available to the Revolver Agent for the account of such LC Issuer such other Canadian LC Participant’s Canadian Commitment Percentage of any such payment. The failure of the Revolver Agent or the applicable LC Issuer to give any such notice of a drawing of the applicable Canadian Letter of Credit or in sufficient time to enable any Canadian LC Participant to effect such payment on the date therefor shall not relieve any such Canadian LC Participant from its obligations under this Section 2.07(h). (iii) Whenever a LC Issuer receives a payment of a reimbursement obligation from an LC Obligor as to which the Revolver Agent has received for the account of such LC Issuer any payments from the Canadian LC Participants pursuant to subpart (ii) above, such LC Issuer shall pay to the Revolver Agent at the Canadian Payment Office and the Revolver Agent shall promptly pay to each Canadian LC Participant that has paid its applicable Canadian Commitment Percentage thereof, in same day funds, an amount equal to such Canadian LC Participant’s applicable Canadian Commitment Percentage of the principal amount thereof and interest thereon accruing after the purchase of the respective Canadian LC Participations, as and to the extent so received. (iv) If the Revolver Agent is required at any time to return to the Company, any LC Obligor or any other Credit Party, or to a trustee, receiver, liquidator, custodian, or any official in any proceeding related to an Insolvency Event, any portion of any payment made by the Company, any LC Obligor or any other Credit Party to the Revolver Agent for the account of the applicable LC Issuer pursuant to this Section in reimbursement of a payment made under the Canadian Letter of Credit or interest or fee thereon, each Canadian Lender shall, on demand of the Revolver Agent, forthwith return to the Revolver Agent for the account of such LC Issuer the amount of its Funding Percentage of any amounts so returned by the Revolver Agent plus interest thereon from the date such demand is made to the date such amounts are returned by such Canadian Lender to the Revolver Agent, at a rate per annum equal to the Federal Funds Effective Rate in effect from time to time. (v) The obligations of the Canadian LC Participants to make payments to the Revolver Agent for the account of each LC Issuer with respect to Canadian Letters of Credit shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances : (A) any lack of validity or enforceability of this Agreement or any of the other Loan Documents or any Canadian Letter of Credit; (B) the existence of any claim, set-off, defense or other right that (y) such Canadian Lender may have against the applicable LC Issuer or any of its Affiliates, the Company, any LC Obligor or any other Person for any reason whatsoever, or which the Company or any LC Obligor may have against such LC Issuer or any of its Affiliates, any Canadian Lender or any other Person for any reason whatsoever; or (z) any LC Obligor may have at any time against a beneficiary named in a Canadian Letter of Credit, any transferee of any Canadian Letter of Credit (or any Person for whom any such transferee may be acting), the Revolver Agent, any LC Issuer, any Canadian Lender, or other Person, whether in connection with this Agreement, any Canadian Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the applicable LC Obligor and the beneficiary named in any such Canadian Letter of Credit), other than any claim that the applicable LC Obligor may have against any applicable LC Issuer for gross negligence or willful misconduct of such LC Issuer in making payment under any applicable Canadian Letter of Credit; (C) the lack of power or authority of any signer of (or any defect in or forgery of any signature or endorsement on) or the form of or lack of validity, sufficiency, accuracy, enforceability or genuineness of any draft, demand, instrument, certificate or other document presented under or in connection with any Canadian Letter of Credit, or any draft, certificate or other document presented under the Canadian Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect; or the transport of any property or provision of services relating to a Canadian Letter of Credit, in each case even if the applicable LC Issuer or any of its Affiliates has been notified thereof; (D) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; (E) any breach of this Agreement or any other Loan Document by any party thereto, or the occurrence of any Default or Event of Default; (F) any claim of breach of warranty that might be made by the Company, any LC Obligor or any other Credit Party or any Canadian Lender against any beneficiary of a Canadian Letter of Credit, or the existence of any claim, set-off, recoupment, counterclaim, crossclaim, defense or other right which the Company, any LC Obligor, any other Credit Party or any Canadian Lender may have at any time against a beneficiary, successor beneficiary any transferee or assignee of any Canadian Letter of Credit or the proceeds thereof (or any Persons for whom any such transferee may be acting), the applicable LC Issuer or its Affiliates or any Canadian Lender or any other Person, whether in connection with this Agreement, the transactions contemplated herein or any unrelated transaction (including any underlying transaction between the Company, any LC Obligor, any other Credit Party or Subsidiaries of the Company, any LC Obligor, any other Credit Party and the beneficiary for which any Canadian Letter of Credit was procured); (G) payment by the applicable LC Issuer or any of its Affiliates under any Canadian Letter of Credit against presentation of a demand, draft or certificate or other document which does not comply with the terms of such Canadian Letter of Credit; (H) the solvency of, or any acts or omissions by, any beneficiary of any Canadian Letter of Credit, or any other Person having a role in any transaction or obligation relating to a Canadian Letter of Credit, or the existence, nature, quality, quantity, condition, value or other characteristic of any property or services relating to a Canadian Letter of Credit; (I) any failure by the applicable LC Issuer or any of its Affiliates to issue any Canadian Letter of Credit in the form requested by the Company or any LC Obligor, unless such LC Issuer has received written notice from the Company or such LC Obligor of such failure within three Business Days after such LC Issuer shall have furnished the Company or such LC Obligor and the Revolver Agent a copy of such Canadian Letter of Credit and such error is material and no drawing has been made thereon prior to receipt of such notice; (J) any adverse change in the business, operations, properties, assets, condition (financial or otherwise) or prospects of the Company, any LC Obligor, any other Credit Party or Subsidiaries of the Company, any LC Obligor, any other Credit Party; (K) the occurrence or continuance of any proceeding related to an Insolvency Event under the Bankruptcy Code or any similar other Law with respect to the Company, any LC Obligor or any other Credit Party; (L) the fact that the Revolving Credit Termination Date shall have passed or this Agreement or the Revolving Commitments hereunder shall have been terminated; and (M) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing. (vi) To the extent any LC Issuer is not indemnified by the Company or any LC Obligor, the Canadian LC Participants will reimburse and indemnify such LC Issuer, in proportion to their respective Canadian Commitment Percentages, for and against any and all liabilities, obligations, losses, damages, penalties, claims, actions, judgments, costs, expenses or disbursements of whatsoever kind or nature that may be imposed on, asserted against or incurred by such Issuer in performing its respective duties in any way related to or arising out of LC Issuances by it; provided, however, that no Canadian LC Participants shall be liable for (A) any portion of such liabilities, obligations, losses, damages, penalties, claims, actions, judgments, costs, expenses or disbursements resulting from such LC Issuer’s gross negligence or willful misconduct as determined by a final non-appealable judgment of a court of competent jurisdiction, or (B) any portion of such liabilities, obligations, losses, damages, penalties, claims, actions, judgments, costs, expenses or disbursements resulting from the failure of any other Canadian LC Participant to fund any Canadian LC Participation pursuant to this Section.
Appears in 2 contracts
Samples: Credit Agreement (American Greetings Corp), Credit Agreement (American Greetings Corp)
Canadian LC Participations. (i) Immediately upon each Canadian LC Issuance, the LC Issuer of such Canadian Letter of Credit shall be deemed to have sold and transferred to each Canadian Lender, and each such Canadian Lender (each a “Canadian LC Participant”) shall be deemed irrevocably and unconditionally to have purchased and received from such LC Issuer, without recourse or warranty, an undivided interest and participation (a “Canadian LC Participation”), to the extent of such Canadian Lender’s Canadian Commitment Percentage of the Stated Amount of such Canadian Letter of Credit in effect at such time of issuance, in such Canadian Letter of Credit, each substitute letter of credit, each drawing made thereunder, the obligations of any LC Obligor under this Agreement with respect thereto (although LC Fees relating thereto shall be payable directly to the Revolver Agent for the account of the Canadian Lenders as provided in Section 2.14 and the Canadian LC Participants shall have no right to receive any portion of any fees of the nature contemplated by Section 2.14(e)), the obligations of any LC Obligor under any LC Documents pertaining thereto, and any security for, or guaranty pertaining to, any of the foregoing.
(ii) In determining whether to pay under any Canadian Letter of Credit, a LC Issuer shall not have any obligation relative to the Canadian LC Participants other than to determine that any documents required to be delivered under such Canadian Letter of Credit have been delivered and that they appear to comply on their face with the requirements of such Canadian Letter of Credit. Any action taken or omitted to be taken by a LC Issuer under or in connection with any Canadian Letter of Credit, if taken or omitted in the absence of gross negligence or willful misconduct, shall not create for such LC Issuer any resulting liability. In the event that a LC Issuer makes any payment under any Canadian Letter of Credit and the applicable LC Obligor shall not have reimbursed such amount in full to such LC Issuer pursuant to Section 2.07(g), such LC Issuer shall promptly notify the Revolver Agent, and the Revolver Agent shall promptly notify each Canadian LC Participant of such failure, and each Canadian LC Participant shall promptly and unconditionally pay to the Revolver Agent at the Canadian Payment Office for the account of such LC Issuer, the amount of such Canadian LC Participant’s Canadian Commitment Percentage of such payment in Canadian Dollars and in same day funds; provided, however, that no Canadian LC Participant shall be obligated to pay to the Revolver Agent its Canadian Commitment Percentage of such unreimbursed amount for any wrongful payment made by such LC Issuer under a Canadian Letter of Credit as a result of acts or omissions constituting willful misconduct or gross negligence on the part of such LC Issuer as determined by a final non-appealable judgment of a court of competent jurisdiction or if at the time of the issuance or extension of a Canadian Letter of Credit, the applicable LC Issuer had actual written notice from a Borrower or another Canadian Lender that an Event of Default had occurred and was continuing. If the Revolver Agent so notifies any Canadian LC Participant required to fund a payment under a Canadian Letter of Credit prior to 11:00 A.M. (local time at its Notice Office) on any Business Day, such Canadian LC Participant shall make available to the Revolver Agent at the Canadian Payment Office for the account of the relevant LC Issuer such Canadian LC Participant’s Canadian Commitment Percentage of the amount of such payment on such Business Day in same day funds. If and to the extent such Canadian LC Participant shall not have so made its Canadian Commitment Percentage of the amount of such payment available to the Revolver Agent for the account of the relevant LC Issuer, such Participant agrees to pay to the Revolver Agent for the account of such LC Issuer, forthwith on demand, such amount, together with interest thereon, for each day from such date until the date such amount is paid to the Revolver Agent for the account of such LC Issuer at (i) at a rate per annum equal to the Federal Funds Effective Rate during the first three (3) days following the date and (ii) at a rate per annum equal to the rate applicable to Loans under the Canadian Base Rate on and after the fourth day following the date on which the applicable Letter of Credit was drawn. The failure of any Canadian LC Participant to make available to the Revolver Agent for the account of the relevant LC Issuer its Canadian Commitment Percentage of any payment under any Canadian Letter of Credit shall not relieve any other Canadian LC Participant of its obligation hereunder to make available to the Revolver Agent for the account of such LC Issuer its Canadian Commitment Percentage of any payment under any Canadian Letter of Credit on the date required, as specified above, but no Canadian LC Participant shall be responsible for the failure of any other Canadian LC Participant to make available to the Revolver Agent for the account of such LC Issuer such other Canadian LC Participant’s Canadian Commitment Percentage of any such payment. The failure of the Revolver Agent or the applicable LC Issuer to give any such notice of a drawing of the applicable Canadian Letter of Credit or in sufficient time to enable any Canadian LC Participant to effect such payment on the date therefor shall not relieve any such Canadian LC Participant from its obligations under this Section 2.07(h).
(iii) Whenever a LC Issuer receives a payment of a reimbursement obligation from an LC Obligor as to which the Revolver Agent has received for the account of such LC Issuer any payments from the Canadian LC Participants pursuant to subpart (ii) above, such LC Issuer shall pay to the Revolver Agent at the Canadian Payment Office and the Revolver Agent shall promptly pay to each Canadian LC Participant that has paid its applicable Canadian Commitment Percentage thereof, in same day funds, an amount equal to such Canadian LC Participant’s applicable Canadian Commitment Percentage of the principal amount thereof and interest thereon accruing after the purchase of the respective Canadian LC Participations, as and to the extent so received.
(iv) If the Revolver Agent is required at any time to return to the Company, any LC Obligor or any other Credit Party, or to a trustee, receiver, liquidator, custodian, or any official in any proceeding related to an Insolvency Event, any portion of any payment made by the Company, any LC Obligor or any other Credit Party to the Revolver Agent for the account of the applicable LC Issuer pursuant to this Section in reimbursement of a payment made under the Canadian Letter of Credit or interest or fee thereon, each Canadian Lender shall, on demand of the Revolver Agent, forthwith return to the Revolver Agent for the account of such LC Issuer the amount of its Funding Percentage of any amounts so returned by the Revolver Agent plus interest thereon from the date such demand is made to the date such amounts are returned by such Canadian Lender to the Revolver Agent, at a rate per annum equal to the Federal Funds Effective Rate in effect from time to time.
(v) The obligations of the Canadian LC Participants to make payments to the Revolver Agent for the account of each LC Issuer with respect to Canadian Letters of Credit shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances circumstances:
(A) any lack of validity or enforceability of this Agreement or any of the other Loan Documents or any Canadian Letter of Credit;
(B) the existence of any claim, set-off, defense or other right that (y) such Canadian Lender may have against the applicable LC Issuer or any of its Affiliates, the Company, any LC Obligor or any other Person for any reason whatsoever, or which the Company or any LC Obligor may have against such LC Issuer or any of its Affiliates, any Canadian Lender or any other Person for any reason whatsoever; or (z) any LC Obligor may have at any time against a beneficiary named in a Canadian Letter of Credit, any transferee of any Canadian Letter of Credit (or any Person for whom any such transferee may be acting), the Revolver Agent, any LC Issuer, any Canadian Lender, or other Person, whether in connection with this Agreement, any Canadian Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the applicable LC Obligor and the beneficiary named in any such Canadian Letter of Credit), other than any claim that the applicable LC Obligor may have against any applicable LC Issuer for gross negligence or willful misconduct of such LC Issuer in making payment under any applicable Canadian Letter of Credit;
(C) the lack of power or authority of any signer of (or any defect in or forgery of any signature or endorsement on) or the form of or lack of validity, sufficiency, accuracy, enforceability or genuineness of any draft, demand, instrument, certificate or other document presented under or in connection with any Canadian Letter of Credit, or any draft, certificate or other document presented under the Canadian Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect; or the transport of any property or provision of services relating to a Canadian Letter of Credit, in each case even if the applicable LC Issuer or any of its Affiliates has been notified thereof;
(D) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents;
(E) any breach of this Agreement or any other Loan Document by any party thereto, or the occurrence of any Default or Event of Default;
(F) any claim of breach of warranty that might be made by the Company, any LC Obligor or any other Credit Party or any Canadian Lender against any beneficiary of a Canadian Letter of Credit, or the existence of any claim, set-off, recoupment, counterclaim, crossclaim, defense or other right which the Company, any LC Obligor, any other Credit Party or any Canadian Lender may have at any time against a beneficiary, successor beneficiary any transferee or assignee of any Canadian Letter of Credit or the proceeds thereof (or any Persons for whom any such transferee may be acting), the applicable LC Issuer or its Affiliates or any Canadian Lender or any other Person, whether in connection with this Agreement, the transactions contemplated herein or any unrelated transaction (including any underlying transaction between the Company, any LC Obligor, any other Credit Party or Subsidiaries of the Company, any LC Obligor, any other Credit Party and the beneficiary for which any Canadian Letter of Credit was procured);
(G) payment by the applicable LC Issuer or any of its Affiliates under any Canadian Letter of Credit against presentation of a demand, draft or certificate or other document which does not comply with the terms of such Canadian Letter of Credit;
(H) the solvency of, or any acts or omissions by, any beneficiary of any Canadian Letter of Credit, or any other Person having a role in any transaction or obligation relating to a Canadian Letter of Credit, or the existence, nature, quality, quantity, condition, value or other characteristic of any property or services relating to a Canadian Letter of Credit;
(I) any failure by the applicable LC Issuer or any of its Affiliates to issue any Canadian Letter of Credit in the form requested by the Company or any LC Obligor, unless such LC Issuer has received written notice from the Company or such LC Obligor of such failure within three Business Days after such LC Issuer shall have furnished the Company or such LC Obligor and the Revolver Agent a copy of such Canadian Letter of Credit and such error is material and no drawing has been made thereon prior to receipt of such notice;
(J) any adverse change in the business, operations, properties, assets, condition (financial or otherwise) or prospects of the Company, any LC Obligor, any other Credit Party or Subsidiaries of the Company, any LC Obligor, any other Credit Party;
(K) the occurrence or continuance of any proceeding related to an Insolvency Event under the Bankruptcy Code or any similar other Law with respect to the Company, any LC Obligor or any other Credit Party;
(L) the fact that the Revolving Credit Termination Date shall have passed or this Agreement or the Revolving Commitments hereunder shall have been terminated; and
(M) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing.
(vi) To the extent any LC Issuer is not indemnified by the Company or any LC Obligor, the Canadian LC Participants will reimburse and indemnify such LC Issuer, in proportion to their respective Canadian Commitment Percentages, for and against any and all liabilities, obligations, losses, damages, penalties, claims, actions, judgments, costs, expenses or disbursements of whatsoever kind or nature that may be imposed on, asserted against or incurred by such Issuer in performing its respective duties in any way related to or arising out of LC Issuances by it; provided, however, that no Canadian LC Participants shall be liable for (A) any portion of such liabilities, obligations, losses, damages, penalties, claims, actions, judgments, costs, expenses or disbursements resulting from such LC Issuer’s gross negligence or willful misconduct as determined by a final non-appealable judgment of a court of competent jurisdiction, or (B) any portion of such liabilities, obligations, losses, damages, penalties, claims, actions, judgments, costs, expenses or disbursements resulting from the failure of any other Canadian LC Participant to fund any Canadian LC Participation pursuant to this Section.
Appears in 2 contracts
Samples: Credit Agreement (American Greetings Corp), Credit Agreement (American Greetings Corp)
Canadian LC Participations. (i) Immediately upon each Canadian LC Issuance, the LC Issuer of such Canadian Letter of Credit shall be deemed to have sold and transferred to each Canadian Lender, and each such Canadian Lender (each a “Canadian LC Participant”) shall be deemed irrevocably and unconditionally to have purchased and received from such LC Issuer, without recourse or warranty, an undivided interest and participation (a “Canadian LC Participation”), to the extent of such Canadian Lender’s Canadian Commitment Percentage of the Stated Amount of such Canadian Letter of Credit in effect at such time of issuance, in such Canadian Letter of Credit, each substitute letter of credit, each drawing made thereunder, the obligations of any LC Obligor under this Agreement with respect thereto (although LC Fees relating thereto shall be payable directly to the Revolver Global Agent for the account of the Canadian Lenders as provided in Section 2.14 and the Canadian LC Participants shall have no right to receive any portion of any fees of the nature contemplated by Section 2.14(e)), the obligations of any LC Obligor under any LC Documents pertaining thereto, and any security for, or guaranty pertaining to, any of the foregoing.
(ii) In determining whether to pay under any Canadian Letter of Credit, a LC Issuer shall not have any obligation relative to the Canadian LC Participants other than to determine that any documents required to be delivered under such Canadian Letter of Credit have been delivered and that they appear to comply on their face with the requirements of such Canadian Letter of Credit. Any action taken or omitted to be taken by a LC Issuer under or in connection with any Canadian Letter of Credit, if taken or omitted in the absence of gross negligence or willful misconduct, shall not create for such LC Issuer any resulting liability. In the event that a LC Issuer makes any payment under any Canadian Letter of Credit and the applicable LC Obligor shall not have reimbursed such amount in full to such LC Issuer pursuant to Section 2.07(g), such LC Issuer shall promptly notify the Revolver Global Agent, and the Revolver Global Agent shall promptly notify each Canadian LC Participant of such failure, and each Canadian LC Participant shall promptly and unconditionally pay to the Revolver Global Agent at the Canadian Payment Office for the account of such LC Issuer, the amount of such Canadian LC Participant’s Canadian Commitment Percentage of such payment in Canadian Dollars and in same day funds; provided, however, that no Canadian LC Participant shall be obligated to pay to the Revolver Global Agent its Canadian Commitment Percentage of such unreimbursed amount for any wrongful payment made by such LC Issuer under a Canadian Letter of Credit as a result of acts or omissions constituting willful misconduct or gross negligence on the part of such LC Issuer as determined by a final non-appealable judgment of a court of competent jurisdiction or if at the time of the issuance or extension of a Canadian Letter of Credit, the applicable LC Issuer had actual written notice from a Borrower or another Canadian Lender that an Event of Default had occurred and was continuingjurisdiction. If the Revolver Global Agent so notifies any Canadian LC Participant required to fund a payment under a Canadian Letter of Credit prior to 11:00 A.M. (local time at its Notice Office) on any Business Day, such Canadian LC Participant shall make available to the Revolver Global Agent at the Canadian Payment Office for the account of the relevant LC Issuer such Canadian LC Participant’s Canadian Commitment Percentage of the amount of such payment on such Business Day in same day funds. If and to the extent such Canadian LC Participant shall not have so made its Canadian Commitment Percentage of the amount of such payment available to the Revolver Global Agent for the account of the relevant LC Issuer, such Participant agrees to pay to the Revolver Global Agent for the account of such LC Issuer, forthwith on demand, demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to the Revolver Global Agent for the account of such LC Issuer at (i) at a rate per annum equal to the Federal Funds Effective Rate during the first three (3) days following the date and (ii) at a rate per annum equal to the rate applicable to Loans under the Canadian Base Rate on and after the fourth day following the date on which the applicable Letter of Credit was drawn. The failure of any Canadian LC Participant to make available to the Revolver Global Agent for the account of the relevant LC Issuer its Canadian Commitment Percentage of any payment under any Canadian Letter of Credit shall not relieve any other Canadian LC Participant of its obligation hereunder to make available to the Revolver Global Agent for the account of such LC Issuer its Canadian Commitment Percentage of any payment under any Canadian Letter of Credit on the date required, as specified above, but no Canadian LC Participant shall be responsible for the failure of any other Canadian LC Participant to make available to the Revolver Global Agent for the account of such LC Issuer such other Canadian LC Participant’s Canadian Commitment Percentage of any such payment. The failure of the Revolver Global Agent or the applicable LC Issuer to give any such notice of a drawing of the applicable Canadian Letter of Credit or in sufficient time to enable any Canadian LC Participant to effect such payment on the date therefor shall not relieve any such Canadian LC Participant from its obligations under this Section 2.07(h).
(iii) Whenever a LC Issuer receives a payment of a reimbursement obligation from an LC Obligor as to which the Revolver Global Agent has received for the account of such LC Issuer any payments from the Canadian LC Participants pursuant to subpart (ii) above, such LC Issuer shall pay to the Revolver Global Agent at the Canadian Payment Office and the Revolver Global Agent shall promptly pay to each Canadian LC Participant that has paid its applicable Canadian Commitment Percentage thereof, in same day funds, an amount equal to such Canadian LC Participant’s applicable Canadian Commitment Percentage of the principal amount thereof and interest thereon accruing after the purchase of the respective Canadian LC Participations, as and to the extent so received.
(iv) If the Revolver Global Agent is required at any time to return to the Company, any LC Obligor or any other Credit Party, or to a trustee, receiver, liquidator, custodian, or any official in any proceeding related to an Insolvency Event, any portion of any payment made by the Company, any LC Obligor or any other Credit Party to the Revolver Global Agent for the account of the applicable LC Issuer pursuant to this Section in reimbursement of a payment made under the Canadian Letter of Credit or interest or fee thereon, each Canadian Lender shall, on demand of the Revolver Global Agent, forthwith return to the Revolver Global Agent for the account of such LC Issuer the amount of its Funding Percentage of any amounts so returned by the Revolver Global Agent plus interest thereon from the date such demand is made to the date such amounts are returned by such Canadian Lender to the Revolver Global Agent, at a rate per annum equal to the Federal Funds Effective Rate in effect from time to time.
(v) The obligations of the Canadian LC Participants to make payments to the Revolver Global Agent for the account of each LC Issuer with respect to Canadian Letters of Credit shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances :
(A) any lack of validity or enforceability of this Agreement or any of the other Loan Documents or any Canadian Letter of Credit;
(B) the existence of any claim, set-off, defense or other right that (y) such Canadian Lender may have against the applicable LC Issuer or any of its Affiliates, the Company, any LC Obligor or any other Person for any reason whatsoever, or which the Company or any LC Obligor may have against such LC Issuer or any of its Affiliates, any Canadian Lender or any other Person for any reason whatsoever; or (z) any LC Obligor may have at any time against a beneficiary named in a Canadian Letter of Credit, any transferee of any Canadian Letter of Credit (or any Person for whom any such transferee may be acting), the Revolver Global Agent, any LC Issuer, any Canadian Lender, or other Person, whether in connection with this Agreement, any Canadian Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the applicable LC Obligor and the beneficiary named in any such Canadian Letter of Credit), other than any claim that the applicable LC Obligor may have against any applicable LC Issuer for gross negligence or willful misconduct of such LC Issuer in making payment under any applicable Canadian Letter of Credit;
(C) the lack of power or authority of any signer of (or any defect in or forgery of any signature or endorsement on) or the form of or lack of validity, sufficiency, accuracy, enforceability or genuineness of any draft, demand, instrument, certificate or other document presented under or in connection with any Canadian Letter of Credit, or any draft, certificate or other document presented under the Canadian Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect; or the transport of any property or provision of services relating to a Canadian Letter of Credit, in each case even if the applicable LC Issuer or any of its Affiliates has been notified thereof;
(D) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents;
(E) any breach of this Agreement or any other Loan Document by any party thereto, or the occurrence of any Default or Event of Default;
(F) any claim of breach of warranty that might be made by the Company, any LC Obligor or any other Credit Party or any Canadian Lender against any beneficiary of a Canadian Letter of Credit, or the existence of any claim, set-off, recoupment, counterclaim, crossclaim, defense or other right which the Company, any LC Obligor, any other Credit Party or any Canadian Lender may have at any time against a beneficiary, successor beneficiary any transferee or assignee of any Canadian Letter of Credit or the proceeds thereof (or any Persons for whom any such transferee may be acting), the applicable LC Issuer or its Affiliates or any Canadian Lender or any other Person, whether in connection with this Agreement, the transactions contemplated herein or any unrelated transaction (including any underlying transaction between the Company, any LC Obligor, any other Credit Party or Subsidiaries of the Company, any LC Obligor, any other Credit Party and the beneficiary for which any Canadian Letter of Credit was procured);
(G) payment by the applicable LC Issuer or any of its Affiliates under any Canadian Letter of Credit against presentation of a demand, draft or certificate or other document which does not comply with the terms of such Canadian Letter of Credit;
(H) the solvency of, or any acts or omissions by, any beneficiary of any Canadian Letter of Credit, or any other Person having a role in any transaction or obligation relating to a Canadian Letter of Credit, or the existence, nature, quality, quantity, condition, value or other characteristic of any property or services relating to a Canadian Letter of Credit;
(I) any failure by the applicable LC Issuer or any of its Affiliates to issue any Canadian Letter of Credit in the form requested by the Company or any LC Obligor, unless such LC Issuer has received written notice from the Company or such LC Obligor of such failure within three Business Days after such LC Issuer shall have furnished the Company or such LC Obligor and the Revolver Global Agent a copy of such Canadian Letter of Credit and such error is material and no drawing has been made thereon prior to receipt of such notice;
(J) any adverse change in the business, operations, properties, assets, condition (financial or otherwise) or prospects of the Company, any LC Obligor, any other Credit Party or Subsidiaries of the Company, any LC Obligor, any other Credit Party;
(K) the occurrence or continuance of any proceeding related to an Insolvency Event under the Bankruptcy Code or any similar other Law with respect to the Company, any LC Obligor or any other Credit Party;
(L) the fact that the Revolving Credit Termination Date shall have passed or this Agreement or the Revolving Commitments hereunder shall have been terminated; and
(M) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing.
(vi) To the extent any LC Issuer is not indemnified by the Company or any LC Obligor, the Canadian LC Participants will reimburse and indemnify such LC Issuer, in proportion to their respective Canadian Commitment Percentages, for and against any and all liabilities, obligations, losses, damages, penalties, claims, actions, judgments, costs, expenses or disbursements of whatsoever kind or nature that may be imposed on, asserted against or incurred by such Issuer in performing its respective duties in any way related to or arising out of LC Issuances by it; provided, however, that no Canadian LC Participants shall be liable for (A) any portion of such liabilities, obligations, losses, damages, penalties, claims, actions, judgments, costs, expenses or disbursements resulting from such LC Issuer’s gross negligence or willful misconduct as determined by a final non-appealable judgment of a court of competent jurisdiction, or (B) any portion of such liabilities, obligations, losses, damages, penalties, claims, actions, judgments, costs, expenses or disbursements resulting from the failure of any other Canadian LC Participant to fund any Canadian LC Participation pursuant to this Section.
Appears in 1 contract
Canadian LC Participations. (i) Immediately upon each Canadian LC Issuance, the LC Issuer of such Canadian Letter of Credit shall be deemed to have sold and transferred to each Canadian Lender, and each such Canadian Lender (each a “Canadian LC Participant”) shall be deemed irrevocably and unconditionally to have purchased and received from such LC Issuer, without recourse or warranty, an undivided interest and participation (a “Canadian LC Participation”), to the extent of such Canadian Lender’s Canadian Commitment Percentage of the Stated Amount of such Canadian Letter of Credit in effect at such time of issuance, in such Canadian Letter of Credit, each substitute letter of credit, each drawing made thereunder, the obligations of any LC Obligor under this Agreement with respect thereto (although LC Fees relating thereto shall be payable directly to the Revolver Global Agent for the account of the Canadian Lenders as provided in Section 2.14 and the Canadian LC Participants shall have no right to receive any portion of any fees of the nature contemplated by Section 2.14(e)), the obligations of any LC Obligor under any LC Documents pertaining thereto, and any security for, or guaranty pertaining to, any of the foregoing.
(ii) In determining whether to pay under any Canadian Letter of Credit, a LC Issuer shall not have any obligation relative to the Canadian LC Participants other than to determine that any documents required to be delivered under such Canadian Letter of Credit have been delivered and that they appear to comply on their face with the requirements of such Canadian Letter of Credit. Any action taken or omitted to be taken by a LC Issuer under or in connection with any Canadian Letter of Credit, if taken or omitted in the absence of gross negligence or willful misconduct, shall not create for such LC Issuer any resulting liability. .
(iii) In the event that a LC Issuer makes any payment under any Canadian Letter of Credit and the applicable LC Obligor shall not have reimbursed such amount in full to such LC Issuer pursuant to Section 2.07(g), such LC Issuer shall promptly notify the Revolver Global Agent, and the Revolver Global Agent shall promptly notify each Canadian LC Participant of such failure, and each Canadian LC Participant shall promptly and unconditionally pay to the Revolver Global Agent at the Canadian Payment Office for the account of such LC Issuer, the amount of such Canadian LC Participant’s Canadian Commitment Percentage of such payment in Canadian Dollars and in same day funds; provided, however, that no Canadian LC Participant shall be obligated to pay to the Revolver Global Agent its Canadian Commitment Percentage of such unreimbursed amount for any wrongful payment made by such LC Issuer under a Canadian Letter of Credit as a result of acts or omissions constituting willful misconduct or gross negligence on the part of such LC Issuer as determined by a final non-appealable judgment of a court of competent jurisdiction or if at the time of the issuance or extension of a Canadian Letter of Credit, the applicable LC Issuer had actual written notice from a Borrower or another Canadian Lender that an Event of Default had occurred and was continuingIssuer. If the Revolver Global Agent so notifies any Canadian LC Participant required to fund a payment under a Canadian Letter of Credit prior to 11:00 A.M. (local time at its Notice Office) on any Business Day, such Canadian LC Participant shall make available to the Revolver Global Agent at the Canadian Payment Office for the account of the relevant LC Issuer such Canadian LC Participant’s Canadian Commitment Percentage of the amount of such payment on such Business Day in same day funds. If and to the extent such Canadian LC Participant shall not have so made its Canadian Commitment Percentage of the amount of such payment available to the Revolver Global Agent for the account of the relevant LC Issuer, such Participant agrees to pay to the Revolver Global Agent for the account of such LC Issuer, forthwith on demand, demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to the Revolver Global Agent for the account of such LC Issuer at (i) at a rate per annum equal to the Federal Funds Effective Rate during the first three (3) days following the date and (ii) at a rate per annum equal to the rate applicable to Loans under the Canadian Base Rate on and after the fourth day following the date on which the applicable Letter of Credit was drawnRate. The failure of any Canadian LC Participant to make available to the Revolver Global Agent for the account of the relevant LC Issuer its Canadian Commitment Percentage of any payment under any Canadian Letter of Credit shall not relieve any other Canadian LC Participant of its obligation hereunder to make available to the Revolver Global Agent for the account of such LC Issuer its Canadian Commitment Percentage of any payment under any Canadian Letter of Credit on the date required, as specified above, but no Canadian LC Participant shall be responsible for the failure of any other Canadian LC Participant to make available to the Revolver Global Agent for the account of such LC Issuer such other Canadian LC Participant’s Canadian Commitment Percentage of any such payment. The failure of the Revolver Agent or the applicable LC Issuer to give any such notice of a drawing of the applicable Canadian Letter of Credit or in sufficient time to enable any Canadian LC Participant to effect such payment on the date therefor shall not relieve any such Canadian LC Participant from its obligations under this Section 2.07(h).
(iiiiv) Whenever a LC Issuer receives a payment of a reimbursement obligation from an LC Obligor as to which the Revolver Global Agent has received for the account of such LC Issuer any payments from the Canadian LC Participants pursuant to subpart (iiiii) above, such LC Issuer shall pay to the Revolver Global Agent at the Canadian Payment Office and the Revolver Global Agent shall promptly pay to each Canadian LC Participant that has paid its applicable Canadian Commitment Percentage thereof, in same day funds, an amount equal to such Canadian LC Participant’s applicable Canadian Commitment Percentage of the principal amount thereof and interest thereon accruing after the purchase of the respective Canadian LC Participations, as and to the extent so received.
(iv) If the Revolver Agent is required at any time to return to the Company, any LC Obligor or any other Credit Party, or to a trustee, receiver, liquidator, custodian, or any official in any proceeding related to an Insolvency Event, any portion of any payment made by the Company, any LC Obligor or any other Credit Party to the Revolver Agent for the account of the applicable LC Issuer pursuant to this Section in reimbursement of a payment made under the Canadian Letter of Credit or interest or fee thereon, each Canadian Lender shall, on demand of the Revolver Agent, forthwith return to the Revolver Agent for the account of such LC Issuer the amount of its Funding Percentage of any amounts so returned by the Revolver Agent plus interest thereon from the date such demand is made to the date such amounts are returned by such Canadian Lender to the Revolver Agent, at a rate per annum equal to the Federal Funds Effective Rate in effect from time to time.
(v) The obligations of the Canadian LC Participants to make payments to the Revolver Global Agent for the account of each LC Issuer with respect to Canadian Letters of Credit shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances circumstances:
(A) any lack of validity or enforceability of this Agreement or any of the other Loan Documents or any Canadian Letter of CreditDocuments;
(B) the existence of any claim, set-off, defense or other right that (y) such Canadian Lender may have against the applicable LC Issuer or any of its Affiliates, the Company, any LC Obligor or any other Person for any reason whatsoever, or which the Company or any LC Obligor may have against such LC Issuer or any of its Affiliates, any Canadian Lender or any other Person for any reason whatsoever; or (z) any LC Obligor may have at any time against a beneficiary named in a Canadian Letter of Credit, any transferee of any Canadian Letter of Credit (or any Person for whom any such transferee may be acting), the Revolver Global Agent, any LC Issuer, any Canadian Lender, or other Person, whether in connection with this Agreement, any Canadian Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the applicable LC Obligor and the beneficiary named in any such Canadian Letter of Credit), other than any claim that the applicable LC Obligor may have against any applicable LC Issuer for gross negligence or willful misconduct of such LC Issuer in making payment under any applicable Canadian Letter of Credit;
(C) the lack of power or authority of any signer of (or any defect in or forgery of any signature or endorsement on) or the form of or lack of validity, sufficiency, accuracy, enforceability or genuineness of any draft, demand, instrument, certificate or other document presented under or in connection with any Canadian Letter of Credit, or any draft, certificate or other document presented under the Canadian Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect; or the transport of any property or provision of services relating to a Canadian Letter of Credit, in each case even if the applicable LC Issuer or any of its Affiliates has been notified thereof;
(D) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents;; or
(E) any breach of this Agreement or any other Loan Document by any party thereto, or the occurrence of any Default or Event of Default;
(F) any claim of breach of warranty that might be made by the Company, any LC Obligor or any other Credit Party or any Canadian Lender against any beneficiary of a Canadian Letter of Credit, or the existence of any claim, set-off, recoupment, counterclaim, crossclaim, defense or other right which the Company, any LC Obligor, any other Credit Party or any Canadian Lender may have at any time against a beneficiary, successor beneficiary any transferee or assignee of any Canadian Letter of Credit or the proceeds thereof (or any Persons for whom any such transferee may be acting), the applicable LC Issuer or its Affiliates or any Canadian Lender or any other Person, whether in connection with this Agreement, the transactions contemplated herein or any unrelated transaction (including any underlying transaction between the Company, any LC Obligor, any other Credit Party or Subsidiaries of the Company, any LC Obligor, any other Credit Party and the beneficiary for which any Canadian Letter of Credit was procured);
(G) payment by the applicable LC Issuer or any of its Affiliates under any Canadian Letter of Credit against presentation of a demand, draft or certificate or other document which does not comply with the terms of such Canadian Letter of Credit;
(H) the solvency of, or any acts or omissions by, any beneficiary of any Canadian Letter of Credit, or any other Person having a role in any transaction or obligation relating to a Canadian Letter of Credit, or the existence, nature, quality, quantity, condition, value or other characteristic of any property or services relating to a Canadian Letter of Credit;
(I) any failure by the applicable LC Issuer or any of its Affiliates to issue any Canadian Letter of Credit in the form requested by the Company or any LC Obligor, unless such LC Issuer has received written notice from the Company or such LC Obligor of such failure within three Business Days after such LC Issuer shall have furnished the Company or such LC Obligor and the Revolver Agent a copy of such Canadian Letter of Credit and such error is material and no drawing has been made thereon prior to receipt of such notice;
(J) any adverse change in the business, operations, properties, assets, condition (financial or otherwise) or prospects of the Company, any LC Obligor, any other Credit Party or Subsidiaries of the Company, any LC Obligor, any other Credit Party;
(K) the occurrence or continuance of any proceeding related to an Insolvency Event under the Bankruptcy Code or any similar other Law with respect to the Company, any LC Obligor or any other Credit Party;
(L) the fact that the Revolving Credit Termination Date shall have passed or this Agreement or the Revolving Commitments hereunder shall have been terminated; and
(M) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing.
(vi) To the extent any LC Issuer is not indemnified by the Company or any LC Obligor, the Canadian LC Participants will reimburse and indemnify such LC Issuer, in proportion to their respective Canadian Commitment Percentages, for and against any and all liabilities, obligations, losses, damages, penalties, claims, actions, judgments, costs, expenses or disbursements of whatsoever kind or nature that may be imposed on, asserted against or incurred by such Issuer in performing its respective duties in any way related to or arising out of LC Issuances by it; provided, however, that no Canadian LC Participants shall be liable for (A) any portion of such liabilities, obligations, losses, damages, penalties, claims, actions, judgments, costs, expenses or disbursements resulting from such LC Issuer’s gross negligence or willful misconduct as determined by a final non-appealable judgment of a court of competent jurisdictionmisconduct, or (B) any portion of such liabilities, obligations, losses, damages, penalties, claims, actions, judgments, costs, expenses or disbursements resulting from the failure of any other Canadian LC Participant to fund any Canadian LC Participation pursuant to this Section.
Appears in 1 contract
