Letter of Credit Participation. Immediately upon the issuance by a Letter of Credit Issuer of a Letter of Credit (or, with respect to any Existing Letters of Credit, on the Closing Date), the Letter of Credit Issuer shall be deemed to have sold and transferred to each Lender, and each Lender (each a “Letter of Credit Participant”) shall be deemed irrevocably and unconditionally to have purchased and received from the Letter of Credit Issuer, without recourse or warranty, an undivided interest and participation, in proportion to such Lender’s Commitment, in such Letter of Credit, each substitute letter of credit, each drawing made thereunder and the obligation of the Borrower under this Agreement with respect thereto (although the Letter of Credit Fee shall be payable directly to the Administrative Agent for the account of the Letter of Credit Participants as provided in Section 14.2) and any security therefor or guaranty pertaining thereto. (a) In determining whether to pay under any Letter of Credit, a Letter of Credit Issuer shall not have any obligation relative to the respective Letter of Credit Participants other than to determine that any documents required to be delivered under such Letter of Credit have been delivered and that they appear on their face to substantially comply with the requirements of such Letter of Credit without responsibility for further investigation and regardless of any notice or information to the contrary. Any action taken or omitted to be taken by a Letter of Credit Issuer under or in connection with any Letter of Credit, if taken or omitted in the absence of gross negligence or willful misconduct, shall not create for such Letter of Credit Issuer any resulting liability to the respective Letter of Credit Participants. (b) If for any reason a Base Rate Advance may not be (as determined in the sole discretion of the Administrative Agent), or is not, made in accordance with Section 3.11(a), then each Letter of Credit Participant (other than the Letter of Credit Issuer) shall promptly and unconditionally pay to such Letter of Credit Issuer, the amount of such Letter of Credit Participant’s Percentage of such payment in Dollars and in same day funds; provided, however, that no Letter of Credit Participant shall be obligated to pay to a Letter of Credit Issuer its percentage of such payment for any wrongful payment made by such Letter of Credit Issuer under a Letter of Credit as a result of acts or omissions constituting willful misconduct or gross negligence on the part of such Letter of Credit Issuer. If a Letter of Credit Issuer so notifies any Letter of Credit Participant required to fund a drawing under a Letter of Credit on any Banking Day, such Letter of Credit Participant shall make available to the Letter of Credit Issuer such Letter of Credit Participant’s Percentage of the amount of such payment on such Banking Day in same day funds. If and to the extent such Letter of Credit Participant shall not have so made its percentage of the amount of such drawing available to the Letter of Credit Issuer, such Letter of Credit Participant agrees to pay to the Letter of Credit Issuer (through the Administrative Agent), forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to the Letter of Credit Issuer at the overnight Federal Funds Rate; provided that if such Letter of Credit Participant shall fail to make such payment to the Letter of Credit Issuer within three (3) Banking Days of such due date, then, retroactively to the due date, such Letter of Credit Participant shall be obligated to pay interest on such amount at the Base Rate. The failure of any Letter of Credit Participant to make available to a Letter of Credit Issuer its percentage of any drawing under any Letter of Credit shall not relieve any other Letter of Credit Participant of its obligation hereunder to make available to such Letter of Credit Issuer its percentage of any payment under any Letter of Credit on the date required, as specified above, but no Letter of Credit Participant shall be responsible for the failure of any other Letter of Credit Participant to make available to such Letter of Credit Issuer such other Letter of Credit Participant’s Percentage of any such payment. (c) The obligation of the respective Letter of Credit Participants to make payments to the applicable Letter of Credit Issuer with respect to Letters of Credit shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever (provided that no Letter of Credit Participant shall be required to make payments resulting from the Letter of Credit Issuer’s gross negligence or willful misconduct) 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: (i) any set-off, counterclaim, recoupment, defense or other right that such Letter of Credit Participant or any other Person may have against the Letter of Credit Issuer or any other Person for any reason whatsoever, (ii) the existence of a Default or an Event of Default or the termination of the Committed Amount, (iii) any adverse change in the condition (financial or otherwise) of the Borrower or any of its Subsidiaries, (iv) any breach of this Agreement by the Borrower or any other Letter of Credit Participant, (v) any amendment, renewal or extension of any Letter of Credit or (vi) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing. Whenever, at any time after the Letter of Credit Issuer has received from any such Letter of Credit Participant the funds for its participation in a payment or disbursement, the Letter of Credit Issuer (or the Administrative Agent on its behalf) receives any payment on account thereof, the Administrative Agent or the Letter of Credit Issuer, as the case may be, will distribute to such Letter of Credit Participant its pro rata share of such payment; provided that if such payment is required to be returned for any reason to the Borrower or to a trustee, receiver, liquidator, custodian or similar official in any bankruptcy proceeding, such Letter of Credit Participant will return to the Administrative Agent or the Letter of Credit Issuer any portion thereof previously distributed by the Administrative Agent or the Letter of Credit Issuer to it. (d) Unless otherwise expressly agreed by the Letter of Credit Issuer and the Borrower when a Letter of Credit is issued and subject to applicable laws, (i) each standby Letter of Credit shall be governed by the “International Standby Practices 1998” (ISP98) (or such later revision as may be published by the Institute of International Banking Law & Practice on any date any Letter of Credit may be issued), (ii) each documentary Letter of Credit shall be governed by the Uniform Customs and Practices for Documentary Credits (2007 Revision), International Chamber of Commerce Publication No. 600 (or such later revision as may be published by the International Chamber of Commerce on any date any Letter of Credit may be issued) and (iii) the Borrower shall specify the foregoing in each letter of credit application submitted for the issuance of a Letter of Credit.
Appears in 1 contract
Samples: Senior Secured Revolving Credit Facility (Era Group Inc.)
Letter of Credit Participation. Immediately upon the issuance by a of each Letter of Credit by the L/C Issuer of a Letter of Credit (orhereunder, with respect to any Existing Letters of Credit, on the Closing Date), the Letter of Credit Issuer each Lender shall be deemed to have sold and transferred to each Lenderautomatically, and each Lender (each a “Letter of Credit Participant”) shall be deemed irrevocably and unconditionally to have purchased and received from the Letter of Credit Issuer, without recourse or warranty, L/C Issuer an undivided interest and participation, participation in proportion and to such Lender’s Commitment, in such Letter of Credit, each substitute letter of credit, each drawing made thereunder and the obligation obligations of the Borrower in respect thereof, and the liability of the L/C Issuer thereunder (collectively, an "L/C INTEREST") in an amount equal to the amount available for drawing under this Agreement with respect thereto (although the Letter such Letters of Credit Fee shall be payable directly multiplied by a fraction having as its numerator, such Lender's Facility A Commitment, and as its denominator, the Facility A Aggregate Commitment. The L/C Issuer will notify each Lender promptly upon presentation to the Administrative Agent for the account it of the Letter of Credit Participants as provided in Section 14.2) and an L/C Draft or upon any security therefor or guaranty pertaining thereto.
(a) In determining whether to pay other draw under any Letter of Credit, a Letter of Credit . On the Business Day on which the L/C Issuer shall not have any obligation relative to the respective Letter of Credit Participants other than to determine that any documents required to be delivered under such Letter of Credit have been delivered and that they appear on their face to substantially comply with the requirements of such Letter of Credit without responsibility for further investigation and regardless makes payment of any notice or information to L/C Draft or, in the contrary. Any action taken or omitted to be taken by a Letter case of Credit Issuer under or in connection with any other draw on the Letter of Credit, if taken or omitted in on demand of the absence of gross negligence or willful misconductL/C Issuer (provided that the Borrower has not prior thereto made payment therefor and no Floating Rate Advance has been made pursuant to SECTION 2.21.3 with respect thereto), each Lender shall not create for such Letter of Credit Issuer any resulting liability make payment to the respective Letter of Credit Participants.
Agent, for credit to the L/C Issuer, in immediately available funds in an amount equal to such Lender's ratable share (b) If for any reason a Base Rate Advance may not be (as determined in the sole discretion of the Administrative Agent), or is not, made in accordance with Section 3.11(a), then each Letter of Credit Participant (other than the Letter of Credit Issuerfraction described above) shall promptly and unconditionally pay to such Letter of Credit Issuer, the amount of such Letter of Credit Participant’s Percentage of such payment in Dollars and in same day funds; provided, however, that no Letter of Credit Participant shall be obligated to pay to a Letter of Credit Issuer its percentage of such payment for any wrongful payment made by such Letter of Credit Issuer under a Letter of Credit as a result of acts or omissions constituting willful misconduct or gross negligence on the part of such Letter of Credit Issuer. If a Letter of Credit Issuer so notifies any Letter of Credit Participant required to fund a drawing under a Letter of Credit on any Banking Day, such Letter of Credit Participant shall make available to the Letter of Credit Issuer such Letter of Credit Participant’s Percentage of the amount of such payment on such Banking Day in same day fundsor draw. If and to the extent such Provided that each Letter of Credit Participant shall not have so made its percentage of is issued by the amount of such drawing available to the Letter of Credit Issuer, such Letter of Credit Participant agrees to pay to the Letter of Credit L/C Issuer (through the Administrative Agent), forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to the Letter of Credit Issuer at the overnight Federal Funds Rate; provided that if such Letter of Credit Participant shall fail to make such payment to the Letter of Credit Issuer within three (3) Banking Days of such due date, then, retroactively to the due date, such Letter of Credit Participant shall be obligated to pay interest on such amount at the Base Rate. The failure of any Letter of Credit Participant to make available to a Letter of Credit Issuer its percentage of any drawing under any Letter of Credit shall not relieve any other Letter of Credit Participant of its obligation hereunder to make available to such Letter of Credit Issuer its percentage of any payment under any Letter of Credit on the date required, as specified above, but no Letter of Credit Participant shall be responsible for the failure of any other Letter of Credit Participant to make available to such Letter of Credit Issuer such other Letter of Credit Participant’s Percentage of any such payment.
(c) The obligation of the respective Letter of Credit Participants to make payments to the applicable Letter of Credit Issuer with respect to Letters of Credit shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever (provided that no Letter of Credit Participant shall be required to make payments resulting from the Letter of Credit Issuer’s gross negligence or willful misconduct) and shall be made in accordance with the terms and conditions of this Agreement Agreement, the obligation of each Lender to reimburse the L/C Issuer under all circumstancesthis SECTION 2.21.2 shall be unconditional, includingcontinuing, without limitationirrevocable and absolute and shall not be affected or impaired by, any among other things, the occurrence of the following circumstances: Facility A Termination Date or the reduction, suspension or termination (iexcept pursuant to SECTION 2.18) of the Facility A Aggregate Commitment or such Lender's Facility A Commitment in accordance with the terms of this Agreement. In the event that any set-offLender fails to make payment to the Agent of any amount due to the L/C Issuer under this SECTION 2.21.2, counterclaimthe Agent shall be entitled to receive for the benefit of the L/C Issuer, recoupmentand the L/C Issuer shall be entitled to receive, defense or retain and apply against such obligation the principal and interest and other right that amounts otherwise payable to such Letter Lender hereunder (whether in respect of Facility A Revolving Loans, Facility B Revolving Loans, Swing Line Loans, Letters of Credit Participant or any other Person may have against the Letter of Credit Issuer or any other Person for any reason whatsoever, (ii) the existence of a Default or an Event of Default or the termination of the Committed Amount, (iii) any adverse change in the condition (financial or otherwise) of until the Borrower Agent receives such payment from such Lender or any such obligation is otherwise fully satisfied; PROVIDED, HOWEVER, that nothing contained in this sentence shall relieve such Lender of its Subsidiaries, (iv) any breach of obligation to reimburse the L/C Issuer for such amount in accordance with this Agreement by the Borrower or any other Letter of Credit Participant, (v) any amendment, renewal or extension of any Letter of Credit or (vi) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing. Whenever, at any time after the Letter of Credit Issuer has received from any such Letter of Credit Participant the funds for its participation in a payment or disbursement, the Letter of Credit Issuer (or the Administrative Agent on its behalf) receives any payment on account thereof, the Administrative Agent or the Letter of Credit Issuer, as the case may be, will distribute to such Letter of Credit Participant its pro rata share of such payment; provided that if such payment is required to be returned for any reason to the Borrower or to a trustee, receiver, liquidator, custodian or similar official in any bankruptcy proceeding, such Letter of Credit Participant will return to the Administrative Agent or the Letter of Credit Issuer any portion thereof previously distributed by the Administrative Agent or the Letter of Credit Issuer to itSECTION 2.21.2.
(d) Unless otherwise expressly agreed by the Letter of Credit Issuer and the Borrower when a Letter of Credit is issued and subject to applicable laws, (i) each standby Letter of Credit shall be governed by the “International Standby Practices 1998” (ISP98) (or such later revision as may be published by the Institute of International Banking Law & Practice on any date any Letter of Credit may be issued), (ii) each documentary Letter of Credit shall be governed by the Uniform Customs and Practices for Documentary Credits (2007 Revision), International Chamber of Commerce Publication No. 600 (or such later revision as may be published by the International Chamber of Commerce on any date any Letter of Credit may be issued) and (iii) the Borrower shall specify the foregoing in each letter of credit application submitted for the issuance of a Letter of Credit.
Appears in 1 contract
Samples: Credit Agreement (Loewen Group Inc)
Letter of Credit Participation. (a) Immediately upon the issuance by a Letter of Credit Issuer of a such Letter of Credit (or, with respect to any Existing Letters of Credit, on the Closing Date), the Letter of Credit Issuer shall be deemed to have sold and transferred to each Lender, and each Lender (each a “Letter of Credit Participant”) shall be deemed irrevocably and unconditionally to have purchased and received from the Letter of Credit Issuer, without recourse or warranty, an undivided interest and participation, in proportion to such Lender’s Commitment, in such Letter of Credit, each substitute letter of credit, each drawing made thereunder and the obligation of the Borrower under this Agreement with respect thereto (although the Letter of Credit Fee shall be payable directly to the Administrative Facility Agent for the account of the Letter of Credit Participants as provided in Section 14.2) and any security therefor or guaranty pertaining thereto; provided, however, that for purposes of an Extended Letter of Credit, a Lender that did not consent to an Extended Letter of Credit shall not be deemed to be a Letter of Credit Participant in such Extended Letter of Credit.
(ab) In determining whether to pay under any Letter of Credit, a the Letter of Credit Issuer shall not have any obligation relative to the respective Letter of Credit Participants other than to determine that any documents required to be delivered under such Letter of Credit have been delivered and that they appear comply on their face to substantially comply with the requirements of such Letter of Credit without responsibility for further investigation and regardless of any notice or information to the contraryCredit. Any action taken or omitted to be taken by a the Letter of Credit Issuer under or in connection with any Letter of Credit, if taken or omitted in the absence of gross negligence or willful misconduct, shall not create for such the Letter of Credit Issuer any resulting liability to the respective Letter of Credit Participants.
(bc) If for In the event that any reason a Base Rate Advance may not be (Letter of Credit Issuer makes any payment under any Letter of Credit issued thereby, upon receipt of notice thereof as determined provided in the sole discretion of the Administrative AgentSection 3.9(a), or is not, made in accordance with Section 3.11(a), then each Letter of Credit Participant (other than the Letter of Credit Issuer) shall promptly and unconditionally pay to such the Letter of Credit Issuer, the amount of such Letter of Credit Participant’s Percentage of such payment in Dollars (or if the Letter of Credit was (x), issued in a Foreign Currency, the currency of issuance or (y) issued in a currency other than Dollars or the Foreign Currencies, in Dollars, based upon the Dollar Equivalent of the deemed advance as calculated pursuant to Section 3.9(a)) and in same day funds; provided, however, that no Letter of Credit Participant shall be obligated to pay to a the Letter of Credit Issuer its percentage of such payment for any wrongful payment made by such the Letter of Credit Issuer under a Letter of Credit as a result of acts or omissions constituting willful misconduct or gross negligence on the part of such the Letter of Credit Issuer. If a the Letter of Credit Issuer so notifies any Letter of Credit Participant required to fund a drawing Drawing under a Letter of Credit prior to 11:00 a.m., New York time, on any Banking Day, such Letter of Credit Participant shall make available to the Letter of Credit Issuer such Letter of Credit Participant’s Percentage of the amount of such payment on such Banking Day in same day funds. If and to the extent such Letter of Credit Participant shall not have so made its percentage of the amount of such drawing available to the Letter of Credit Issuer, such Letter of Credit Participant agrees to pay to the Letter of Credit Issuer (through the Administrative Agent)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 Letter of Credit Issuer at the overnight Federal Funds Rate; provided that if such Letter of Credit Participant shall fail to make such payment to the Letter of Credit Issuer within three (3) Banking Days of such due date, then, retroactively to the due date, such Letter of Credit Participant shall be obligated to pay interest on such amount at the Base Effective Rate. The failure of any Letter of Credit Participant to make available to a the Letter of Credit Issuer its percentage of any drawing under any Letter of Credit shall not relieve any other Letter of Credit Participant of its obligation hereunder to make available to such the Letter of Credit Issuer its percentage of any payment under any Letter of Credit on the date required, as specified above, but no Letter of Credit Participant shall be responsible for the failure of any other Letter of Credit Participant to make available to such the Letter of Credit Issuer such other Letter of Credit Participant’s Percentage of any such payment.
(cd) The obligation of the respective Letter of Credit Participants to make payments to the applicable Letter of Credit Issuer with respect to Letters of Credit shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever (provided that no Letter of Credit Participant shall be required to make payments resulting from the Letter of Credit Issuer’s gross negligence or willful misconduct) 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: :
(i) any set-off, counterclaim, recoupment, defense lack of validity or other right that such Letter enforceability of Credit Participant or any other Person may have against the Letter of Credit Issuer or any other Person for any reason whatsoever, this Agreement.
(ii) the existence of a Default any claim, set-off, defense or an Event of Default or the termination of the Committed Amount, (iii) any adverse change in the condition (financial or otherwise) of other right which the Borrower or may have at any of its Subsidiaries, (iv) any breach of this Agreement by the Borrower or any other time against a beneficiary named in a Letter of Credit ParticipantCredit, (v) any amendment, renewal or extension transferee of any Letter of Credit (or (vi) any person for whom any such transferee may be acting), any Agent or Lender or other circumstance, happening or event whatsoeverperson, whether or not similar to in connection with this Agreement, any of the foregoing. Whenever, at any time after the Letter of Credit Issuer has received from Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the Borrower and the beneficiary named in any such Letter of Credit Participant the funds for its participation in a payment or disbursement, the Letter of Credit Issuer (or the Administrative Agent on its behalf) receives any payment on account thereof, the Administrative Agent or the Letter of Credit Issuer, as the case may be, will distribute to such Letter of Credit Participant its pro rata share of such payment; provided that if such payment is required to be returned for any reason to the Borrower or to a trustee, receiver, liquidator, custodian or similar official in any bankruptcy proceeding, such Letter of Credit Participant will return to the Administrative Agent or the Letter of Credit Issuer any portion thereof previously distributed by the Administrative Agent or the Letter of Credit Issuer to it.Credit);
(diii) Unless otherwise expressly agreed by the Letter of Credit Issuer and the Borrower when any draft, certificate or other document presented under a Letter of Credit is issued and subject proving to applicable lawsbe forged, fraudulent or invalid in any respect or any statement therein being untrue or inaccurate in any respect; or
(i) each standby Letter of Credit shall be governed by the “International Standby Practices 1998” (ISP98) (or such later revision as may be published by the Institute of International Banking Law & Practice on any date any Letter of Credit may be issued), (ii) each documentary Letter of Credit shall be governed by the Uniform Customs and Practices for Documentary Credits (2007 Revision), International Chamber of Commerce Publication No. 600 (or such later revision as may be published by the International Chamber of Commerce on any date any Letter of Credit may be issued) and (iiiiv) the Borrower shall specify the foregoing in each letter occurrence of credit application submitted for the issuance any Event of a Letter of CreditDefault.
Appears in 1 contract
Samples: Revolving Credit Facility (Seacor Holdings Inc /New/)
Letter of Credit Participation. (a) Immediately upon the issuance by a the respective Issuing Lender of any Letter of Credit Issuer of a Letter of Credit (or, with respect to any Existing Letters of Credit, on the Closing Date), the Letter of Credit Issuer such Issuing Lender shall be deemed to have sold and transferred to each Lender, and each other than such Issuing Lender (each such Lender, in its capacity under this Section 2.04, a “Letter of Credit "Participant”) "), and each such Participant shall be deemed irrevocably and unconditionally to have purchased and received from the Letter of Credit Issuersuch Issuing Lender, without recourse or warranty, an undivided interest and participation, in proportion to the extent of such Lender’s CommitmentParticipant's Percentage, in such Letter of Credit, each substitute letter of credit, each drawing or payment made thereunder and the obligation obligations of the Borrower under this Agreement with respect thereto (although the Letter of Credit Fee shall be payable directly to the Administrative Agent for the account of the Letter of Credit Participants as provided in Section 14.2) thereto, and any security therefor or guaranty pertaining thereto. Upon any change in the Revolving Loan Commitments of the Lenders pursuant to Section 1.13 or 13.04, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings, there shall be an automatic adjustment to the participations pursuant to this Section 2.04 to reflect the new Percentages of the assignor and assignee Lender, as the case may be.
(ab) In determining whether to pay under any Letter of Credit, a Letter of Credit Issuer the respective Issuing Lender shall not have any no obligation relative to the respective Letter of Credit Participants other Lenders other than to determine confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face to substantially comply with the requirements of such Letter of Credit without responsibility for further investigation and regardless of any notice or information to the contraryCredit. Any action taken or omitted to be taken by a Letter of Credit Issuer any Issuing Lender under or in connection with any Letter of Credit, Credit if taken or omitted in the absence of gross negligence or willful misconductmis- conduct, shall not create for such Letter of Credit Issuer Issuing Lender any resulting liability to the respective Borrower, any other Credit Party, any Lender or any other Person.
(c) In the event that any Issuing Lender makes any payment under any Letter of Credit Participants.
(b) If for any reason a Base Rate Advance may and the Borrower shall not be (as determined have reimbursed such amount in the sole discretion of full to such Issuing Lender pursuant to Section 2.05(a), such Issuing Lender shall promptly notify the Administrative Agent), or is notwhich shall promptly notify each Participant of such failure, made in accordance with Section 3.11(a), then and each Letter of Credit Participant (other than the Letter of Credit Issuer) shall promptly and unconditionally pay to such Letter of Credit Issuer, Issuing Lender the amount of such Letter of Credit Participant’s 's Percentage of such unreimbursed payment in Dollars and in same day funds; provided, however, that no Letter of Credit Participant shall be obligated to pay to a Letter of Credit Issuer its percentage of such payment for any wrongful payment made by such Letter of Credit Issuer under a Letter of Credit as a result of acts or omissions constituting willful misconduct or gross negligence on the part of such Letter of Credit Issuer. If a Letter of Credit Issuer the Administrative Agent so notifies notifies, prior to 11:00 A.M. (New York time) on any Letter of Credit Business Day, any Participant required to fund a drawing payment under a Letter of Credit on any Banking DayCredit, such Letter of Credit Participant shall make available to the Letter of Credit Issuer such Letter of Credit Issuing Lender in Dollars such Participant’s 's Percentage of the amount of such payment on such Banking Business Day in same day funds. If and to the extent such Letter of Credit Participant shall not have so made its percentage Percentage of the amount of such drawing payment available to the Letter of Credit Issuersuch Issuing Lender, such Letter of Credit Participant agrees to pay to the Letter of Credit Issuer (through the Administrative Agent)such Issuing Lender, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to the Letter of Credit Issuer such Issuing Lender at the overnight Federal Funds Rate; provided that if such Letter of Credit Participant shall fail to make such payment to Rate for the Letter of Credit Issuer within first three (3) Banking Days of such due date, then, retroactively to the due date, such Letter of Credit Participant shall be obligated to pay interest on such amount days and at the interest rate applicable to Revolving Loans maintained as Base RateRate Loans for each day thereafter. The failure of any Letter of Credit Participant to make available to a Letter of Credit Issuer such Issuing Lender its percentage Percentage of any drawing payment under any Letter of Credit shall not relieve any other Letter of Credit Participant of its obligation hereunder to make available to such Letter Issuing Lender its Percentage of Credit Issuer its percentage of any payment under any Letter of Credit on the date required, as specified above, but no Letter of Credit Participant shall be responsible for the failure of any other Letter of Credit Participant to make available to such Letter of Credit Issuer Issuing Lender such other Letter of Credit Participant’s 's Percentage of any such payment.
(d) Whenever any Issuing Lender receives a payment of a reimbursement obligation as to which it has received any payments from the Participants pursuant to clause (c) The above, such Issuing Lender shall pay to each Participant which has paid its Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant's share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations.
(e) Upon the request of any Participant, each Issuing Lender shall furnish to such Participant copies of any Letter of Credit issued by it and such other documentation relating thereto as may reasonably be requested by such Participant.
(f) The obligations of the Participants to make payments to the applicable Letter of Credit Issuer each Issuing Lender with respect to Letters of Credit issued by it shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever (provided that no Letter of Credit Participant shall be required to make payments resulting from the Letter of Credit Issuer’s gross negligence or willful misconduct) 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: :
(i) any set-off, counterclaim, recoupment, defense lack of validity or other right that such Letter enforceability of Credit Participant this Agreement or any of the other Person may have against the Letter of Credit Issuer or any other Person for any reason whatsoever, Documents;
(ii) the existence of a Default any claim, setoff, defense or an Event of Default or the termination of the Committed Amount, (iii) any adverse change in the condition (financial or otherwise) of other right which the Borrower or any of its Subsidiaries, (iv) Subsidiaries may have at any breach of this Agreement by the Borrower or any other time against a beneficiary named in a Letter of Credit ParticipantCredit, (v) any amendment, renewal or extension transferee of any Letter of Credit (or (vi) any Person for whom any such transferee may be acting), the Administrative Agent, any Participant, or any other circumstance, happening or event whatsoeverPerson, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or not similar to any unrelated transactions (including any underlying transaction between the Borrower or any Subsidiary of the foregoing. Whenever, at any time after Borrower and the Letter of Credit Issuer has received from beneficiary named in any such Letter of Credit Participant the funds for its participation in a payment or disbursement, the Letter of Credit Issuer (or the Administrative Agent on its behalf) receives any payment on account thereof, the Administrative Agent or the Letter of Credit Issuer, as the case may be, will distribute to such Letter of Credit Participant its pro rata share of such payment; provided that if such payment is required to be returned for any reason to the Borrower or to a trustee, receiver, liquidator, custodian or similar official in any bankruptcy proceeding, such Letter of Credit Participant will return to the Administrative Agent or the Letter of Credit Issuer any portion thereof previously distributed by the Administrative Agent or the Letter of Credit Issuer to it.Credit);
(diii) Unless otherwise expressly agreed by the Letter of Credit Issuer and the Borrower when a Letter of Credit is issued and subject to applicable lawsany draft, (i) each standby Letter of Credit shall be governed by the “International Standby Practices 1998” (ISP98) (certificate or such later revision as may be published by the Institute of International Banking Law & Practice on any date other document presented under any Letter of Credit may proving to be issued)forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(ii) each documentary Letter of Credit shall be governed by the Uniform Customs and Practices for Documentary Credits (2007 Revision), International Chamber of Commerce Publication No. 600 (or such later revision as may be published by the International Chamber of Commerce on any date any Letter of Credit may be issued) and (iiiiv) the Borrower shall specify the foregoing in each letter surrender or impairment of credit application submitted any security for the issuance performance or observance of a Letter any of Creditthe terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default.
Appears in 1 contract
Letter of Credit Participation. (a) Immediately upon the issuance by a any Issuing Bank of any Letter of Credit Issuer of a Letter of Credit (or, with respect to any Existing Letters of Credit, on the Closing Date), the Letter of Credit Issuer such Issuing Bank shall be deemed to have sold and transferred to each LenderBank, other than such Issuing Bank (each such Bank, in its capacity under this Section 2.04, a "Participant"), and each Lender (each a “Letter of Credit Participant”) such Participant shall be deemed irrevocably and unconditionally to have purchased and received from the Letter of Credit Issuersuch Issuing Bank, without recourse or warranty, an undivided interest and participation, in proportion to the extent of such Lender’s CommitmentParticipant's Adjusted RL Percentage, in such Letter of Credit, each substitute letter of credit, each drawing made thereunder and the obligation obligations of the Borrower under this Agreement with respect thereto (although the Letter of Credit Fee shall be payable directly to the Administrative Agent for the account of the Letter of Credit Participants as provided in Section 14.2) thereto, and any security therefor or guaranty pertaining thereto. Upon any change in the Revolving Loan Commitments or Adjusted RL Percentages of the Banks pursuant to Section 1.13 or 13.04 or as a result of a Bank Default, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings, there shall be an automatic adjustment to the participation pursuant to this Section 2.04 to reflect the new Adjusted RL Percentages of the assignor and assignee Bank or of all Banks with Revolving Loan Commitments, as the case may be.
(ab) In determining whether to pay under any Letter of Credit, a Letter of Credit Issuer such Issuing Bank shall not have any no obligation relative to the respective Letter of Credit Participants other Banks other than to determine confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face to substantially comply with the requirements of such Letter of Credit without responsibility for further investigation and regardless of any notice or information to the contraryCredit. Any action taken or omitted to be taken by a Letter of Credit Issuer any Issuing Bank under or in connection with any Letter of Credit, Credit if taken or omitted in the absence of gross negligence or willful misconduct, shall not create for such Letter of Credit Issuer Issuing Bank any resulting liability to the respective Borrower, any other Credit Party or any Bank.
(c) In the event that any Issuing Bank makes any payment under any Letter of Credit Participants.
(b) If for any reason a Base Rate Advance may and the Borrower shall not be (as determined have reimbursed such amount in the sole discretion of full to such Issuing Bank pursuant to Section 2.05(a), such Issuing Bank shall promptly notify the Administrative Agent), or is notwhich shall promptly notify each Participant of such failure, made in accordance with Section 3.11(a), then and each Letter of Credit Participant (other than the Letter of Credit Issuer) shall promptly and unconditionally pay to such Letter of Credit Issuer, Issuing Bank the amount of such Letter of Credit Participant’s 's Adjusted RL Percentage of such unreimbursed payment in Dollars and in same day funds; provided, however, that no Letter of Credit Participant shall be obligated to pay to a Letter of Credit Issuer its percentage of such payment for any wrongful payment made by such Letter of Credit Issuer under a Letter of Credit as a result of acts or omissions constituting willful misconduct or gross negligence on the part of such Letter of Credit Issuer. If a Letter of Credit Issuer the Administrative Agent so notifies notifies, prior to 11:00 A.M. (New York time) on any Letter of Credit Business Day, any Participant required to fund a drawing payment under a Letter of Credit on any Banking DayCredit, such Letter of Credit Participant shall make available to the Letter of Credit Issuer such Letter of Credit Issuing Bank in Dollars such Participant’s 's Adjusted RL Percentage of the amount of such payment on such Banking Business Day in same day funds. If and to the extent such Letter of Credit Participant shall not have so made its percentage Adjusted RL Percentage of the amount of such drawing payment available to the Letter of Credit Issuersuch Issuing Bank, such Letter of Credit Participant agrees to pay to the Letter of Credit Issuer (through the Administrative Agent)such Issuing Bank, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to the Letter of Credit Issuer such Issuing Bank at the overnight Federal Funds Rate; provided that if such Letter of Credit Participant shall fail to make such payment to the Letter of Credit Issuer within three (3) Banking Days of such due date, then, retroactively to the due date, such Letter of Credit Participant shall be obligated to pay interest on such amount at the Base Rate. The failure of any Letter of Credit Participant to make available to a Letter of Credit Issuer such Issuing Bank its percentage Adjusted RL Percentage of any drawing payment under any Letter of Credit shall not relieve any other Letter of Credit Participant of its obligation hereunder to make available to such Letter Issuing Bank its Adjusted RL Percentage of Credit Issuer its percentage of any payment under any Letter of Credit on the date required, as specified above, but no Letter of Credit Participant shall be responsible for the failure of any other Letter of Credit Participant to make available to such Letter of Credit Issuer Issuing Bank such other Letter of Credit Participant’s 's Adjusted RL Percentage of any such payment.
(d) Whenever any Issuing Bank receives a payment of a reim- xxrsement obligation as to which it has received any payments from the Participants pursuant to clause (c) The above, such Issuing Bank shall pay to each Participant which has paid its Adjusted RL Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant's share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participation.
(e) Upon the written request of any Participant, each Issuing Bank shall furnish to such Participant copies of any Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) The obligations of the Participants to make payments to the applicable Letter of Credit Issuer each Issuing Bank with respect to Letters of Credit issued by it shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever (provided that no Letter of Credit Participant shall be required to make payments resulting from the Letter of Credit Issuer’s gross negligence or willful misconduct) 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: :
(i) any set-off, counterclaim, recoupment, defense lack of validity or other right that such Letter enforceability of Credit Participant this Agreement or any of the other Person may have against the Letter of Credit Issuer or any other Person for any reason whatsoever, Documents;
(ii) the existence of a Default any claim, setoff, defense or an Event of Default or the termination of the Committed Amount, (iii) other right which any adverse change in the condition (financial or otherwise) of the Borrower Credit Party or any of its Subsidiaries, (iv) Subsidiaries may have at any breach of this Agreement by the Borrower or any other time against a beneficiary named in a Letter of Credit ParticipantCredit, (v) any amendment, renewal or extension transferee of any Letter of Credit (or (vi) any Person for whom any such transferee may be acting), the Administrative Agent, any Issuing Bank, any Participant, or any other circumstance, happening or event whatsoeverPerson, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or not similar to any unrelated transactions (including any underlying transaction between any Credit Party or any of its Subsidiaries and the foregoing. Whenever, at any time after the Letter of Credit Issuer has received from beneficiary named in any such Letter of Credit Participant the funds for its participation in a payment or disbursement, the Letter of Credit Issuer (or the Administrative Agent on its behalf) receives any payment on account thereof, the Administrative Agent or the Letter of Credit Issuer, as the case may be, will distribute to such Letter of Credit Participant its pro rata share of such payment; provided that if such payment is required to be returned for any reason to the Borrower or to a trustee, receiver, liquidator, custodian or similar official in any bankruptcy proceeding, such Letter of Credit Participant will return to the Administrative Agent or the Letter of Credit Issuer any portion thereof previously distributed by the Administrative Agent or the Letter of Credit Issuer to it.Credit);
(diii) Unless otherwise expressly agreed by the Letter of Credit Issuer and the Borrower when a Letter of Credit is issued and subject to applicable lawsany draft, (i) each standby Letter of Credit shall be governed by the “International Standby Practices 1998” (ISP98) (certificate or such later revision as may be published by the Institute of International Banking Law & Practice on any date other document presented under any Letter of Credit may proving to be issued)forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(ii) each documentary Letter of Credit shall be governed by the Uniform Customs and Practices for Documentary Credits (2007 Revision), International Chamber of Commerce Publication No. 600 (or such later revision as may be published by the International Chamber of Commerce on any date any Letter of Credit may be issued) and (iiiiv) the Borrower shall specify the foregoing in each letter surrender or impairment of credit application submitted any security for the issuance performance or observance of a Letter any of Creditthe terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default.
Appears in 1 contract
Letter of Credit Participation. (a) Immediately upon the issuance by a the respective Issuing Lender of any Letter of Credit Issuer of a Letter of Credit (or, with respect to any Existing Letters of Credit, on the Closing Date), the Letter of Credit Issuer such Issuing Lender shall be deemed to have sold and transferred to each Lender with a Revolving Loan Commitment, other than such Issuing Lender (each such Lender, in its capacity under this Section 2.04, a “Participant”), and each Lender (each a “Letter of Credit Participant”) such Participant shall be deemed irrevocably irrevocably and unconditionally unconditionally to have purchased and received from the Letter of Credit Issuersuch Issuing Lender, without without recourse or warrantywarranty, an undivided interest and participation, in proportion to the extent of such LenderParticipant’s CommitmentPercentage, in such Letter of Credit, each substitute letter of credit, each drawing or payment made thereunder and the obligation obligations of the Borrower Borrower under this Agreement with respect thereto (although the Letter of Credit Fee shall be payable directly to the Administrative Agent for the account of the Letter of Credit Participants as provided in Section 14.2) thereto, and any security therefor or guaranty pertaining pertaining thereto. Upon any change in the Revolving Loan Commitments of the Lenders pursuant to Section 1.13 or 13.04, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings, there shall be an automatic adjustment to the participations pursuant to this Section 2.04 to reflect the new Percentages of the assignor and assignee Lender, as the case may be.
(ab) In determining whether to pay under any Letter of Credit, a Letter of Credit Issuer the respective Issuing Lender shall not have any no obligation relative to the respective Letter of Credit Participants other Lenders other than to determine confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face to substantially comply with the requirements of such Letter of Credit without responsibility for further investigation and regardless of any notice or information to the contraryCredit. Any action taken or omitted to be taken by a Letter of Credit Issuer any Issuing Lender under or in connection with any Letter of Credit, Credit if taken or omitted in the absence of gross negligence or willful misconductmisconduct (as determined by a court of competent jurisdiction in a final and non-appealable decision), shall not create for such Letter of Credit Issuer Issuing Lender any resulting liability to the respective Borrower, any other Credit Party, any Lender or any other Person.
(c) In the event that any Issuing Lender makes any payment under any Letter of Credit Participants.
(b) If for any reason a Base Rate Advance may and the Borrower shall not be (as determined have reimbursed such amount in the sole discretion of full to such Issuing Lender pursuant to Section 2.05(a), such Issuing Lender shall promptly notify the Administrative Agent), or is notwhich shall promptly notify each Participant of such failure, made in accordance with Section 3.11(a), then and each Letter of Credit Participant (other than the Letter of Credit Issuer) shall promptly and unconditionally unconditionally pay to such Letter of Credit Issuer, Issuing Lender the amount of such Letter of Credit Participant’s Percentage of such unreimbursed payment in Dollars and in same day funds; provided, however, that no Letter of Credit Participant shall be obligated to pay to a Letter of Credit Issuer its percentage of such payment for any wrongful payment made by such Letter of Credit Issuer under a Letter of Credit as a result of acts or omissions constituting willful misconduct or gross negligence on the part of such Letter of Credit Issuer. If a Letter of Credit Issuer the Administrative Agent so notifies notifies, prior to 11:00 A.M. (New York time) on any Letter of Credit Business Day, any Participant required to fund a drawing payment under a Letter of Credit on any Banking DayCredit, such Letter of Credit Participant shall make available to the Letter of Credit Issuer such Letter of Credit Issuing Lender in Dollars such Participant’s Percentage Percentage of the amount of such payment on such Banking Business Day in same day funds. If and to the extent such Letter of Credit Participant shall not have so made its percentage Percentage of the amount of such drawing payment available to the Letter of Credit Issuersuch Issuing Lender, such Letter of Credit Participant agrees to pay to the Letter of Credit Issuer (through the Administrative Agent)such Issuing Lender, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to the Letter of Credit Issuer such Issuing Lender at the overnight Federal Funds Rate; provided that if such Letter of Credit Participant shall fail to make such payment to Rate for the Letter of Credit Issuer within first three (3) Banking Days of such due date, then, retroactively to the due date, such Letter of Credit Participant shall be obligated to pay interest on such amount days and at the interest rate applicable to Revolving Loans maintained as Base RateRate Loans for each day thereafter. The failure of any Letter of Credit Participant to make available available to a Letter of Credit Issuer such Issuing Lender its percentage Percentage of any drawing payment under any Letter of Credit shall not relieve any other Letter of Credit Participant of its obligation hereunder to make available to such Letter Issuing Lender its Percentage of Credit Issuer its percentage of any payment under any Letter of Credit on the date required, as specified specified above, but no Letter of Credit Participant shall be responsible for the failure of any other Letter of Credit Participant to make available to such Letter of Credit Issuer Issuing Lender such other Letter of Credit Participant’s Percentage of any such payment.
(d) Whenever any Issuing Lender receives a payment of a reimbursement obligation as to which it has received any payments from the Participants pursuant to clause (c) The above, such Issuing Lender shall pay to each Participant which has paid its Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant’s share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations.
(e) Upon the request of any Participant, each Issuing Lender shall furnish to such Participant copies of any Letter of Credit issued by it and such other documentation relating thereto as may reasonably be requested by such Participant.
(f) The obligations of the Participants to make payments to the applicable Letter of Credit Issuer each Issuing Lender with respect to Letters of Credit issued by it shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification qualification or exception whatsoever (provided that no Letter of Credit Participant shall be required to make payments resulting from the Letter of Credit Issuer’s gross negligence or willful misconduct) and shall be made in accordance with the terms and conditions conditions of this Agreement under all circumstances, including, without limitation, any of the following following circumstances: :
(i) any set-off, counterclaim, recoupment, defense lack of validity or other right that such Letter enforceability of Credit Participant this Agreement or any of the other Person may have against the Letter of Credit Issuer or any other Person for any reason whatsoever, Documents;
(ii) the existence of a Default any claim, setoff, defense or an Event of Default or the termination of the Committed Amount, (iii) any adverse change in the condition (financial or otherwise) of other right which the Borrower or any of its Subsidiaries, (iv) Subsidiaries may have at any breach of this Agreement by the Borrower or any other time against a beneficiary named in a Letter of Credit ParticipantCredit, (v) any amendment, renewal or extension transferee of any Letter of Credit (or (vi) any Person for whom any such transferee may be acting), the Administrative Agent, any Participant, or any other circumstance, happening or event whatsoeverPerson, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or not similar to any unrelated transactions (including any underlying transaction between the Borrower or any Subsidiary of the foregoing. Whenever, at any time after Borrower and the Letter of Credit Issuer has received from beneficiary named in any such Letter of Credit Participant the funds for its participation in a payment or disbursement, the Letter of Credit Issuer (or the Administrative Agent on its behalf) receives any payment on account thereof, the Administrative Agent or the Letter of Credit Issuer, as the case may be, will distribute to such Letter of Credit Participant its pro rata share of such payment; provided that if such payment is required to be returned for any reason to the Borrower or to a trustee, receiver, liquidator, custodian or similar official in any bankruptcy proceeding, such Letter of Credit Participant will return to the Administrative Agent or the Letter of Credit Issuer any portion thereof previously distributed by the Administrative Agent or the Letter of Credit Issuer to it.Credit);
(diii) Unless otherwise expressly agreed by the Letter of Credit Issuer and the Borrower when a Letter of Credit is issued and subject to applicable lawsany draft, (i) each standby Letter of Credit shall be governed by the “International Standby Practices 1998” (ISP98) (certificate or such later revision as may be published by the Institute of International Banking Law & Practice on any date other document presented under any Letter of Credit may proving to be issued)forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(ii) each documentary Letter of Credit shall be governed by the Uniform Customs and Practices for Documentary Credits (2007 Revision), International Chamber of Commerce Publication No. 600 (or such later revision as may be published by the International Chamber of Commerce on any date any Letter of Credit may be issued) and (iiiiv) the Borrower shall specify the foregoing in each letter surrender or impairment of credit application submitted any security for the issuance performance or observance of a Letter any of Creditthe terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default.
Appears in 1 contract
Letter of Credit Participation. (a) Immediately upon the issuance by a the Letter of Credit Issuer of a such Letter of Credit (or, with respect to any Existing Letters of Credit, on the Closing Date), the Letter of Credit Issuer shall be deemed to have sold and transferred to each Lender, and each Lender (each a “"Letter of Credit Participant”") shall be deemed irrevocably and unconditionally to have purchased and received from the Letter of Credit Issuer, without recourse or warranty, an undivided interest and participation, in proportion to the extent of such Lender’s 's Commitment, in such Letter of Credit, each substitute letter of credit, each drawing made thereunder and the obligation of the Borrower Borrowers under this Agreement with respect thereto (although the Letter of Credit Fee shall be payable directly to the Administrative Agent for the account of the Letter of Credit Participants as provided in Section 14.2) and any security therefor or guaranty pertaining thereto.
(ab) In determining whether to pay under any Letter of Credit, a the Letter of Credit Issuer shall not have any obligation relative to the respective Letter of Credit Participants other than to determine that any documents required to be delivered under such Letter of Credit have been delivered and that they appear comply on their face to substantially comply with the requirements of such Letter of Credit without responsibility for further investigation and regardless of any notice or information to the contraryCredit. Any action taken or omitted to be taken by a the Letter of Credit Issuer under or in connection with any Letter of Credit, if taken or omitted in the absence of gross negligence or willful misconduct, shall not create for such the Letter of Credit Issuer any resulting liability to the respective Letter of Credit Participants.
(bc) If for In the event that the Letter of Credit Issuer makes any reason a Base Rate Advance may not be (payment under any Letter of Credit issued thereby, upon receipt of notice thereof as determined provided in the sole discretion of the Administrative AgentSection 3.10(a), or is not, made in accordance with Section 3.11(a), then each Letter of Credit Participant (other than the Letter of Credit Issuer) shall promptly and unconditionally pay to such the Letter of Credit Issuer, the amount of such Letter of Credit Participant’s 's Percentage of such payment in Dollars and in same day funds; provided, however, that no Letter of Credit Participant shall be obligated to pay to a the Letter of Credit Issuer its percentage of such payment for any wrongful payment made by such the Letter of Credit Issuer under a Letter of Credit as a result of acts or omissions constituting willful misconduct or gross negligence on the part of such the Letter of Credit Issuer. If a the Letter of Credit Issuer so notifies any Letter of Credit Participant required to fund a drawing Drawing under a Letter of Credit prior to 11:00 a.m., New Orleans time, on any Banking Day, such Letter of Credit Participant shall make available to the Letter of Credit Issuer such Letter of Credit Participant’s 's Percentage of the amount of such payment on such Banking Day in same day funds. If and to the extent such Letter of Credit Participant shall not have so made its percentage of the amount of such drawing available to the Letter of Credit Issuer, such Letter of Credit Participant agrees to pay to the Letter of Credit Issuer (through the Administrative Agent)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 Letter of Credit Issuer at the LIBOR Rate for overnight Federal Funds Rate; provided that if such Letter of Credit Participant shall fail to make such payment to the Letter of Credit Issuer within three (3) Banking Days of such due date, then, retroactively to the due date, such Letter of Credit Participant shall be obligated to pay interest on such amount at the Base Rateor weekend deposits. The failure of any Letter of Credit Participant to make available to a the Letter of Credit Issuer its percentage of any drawing under any Letter of Credit shall not relieve any other Letter of Credit Participant of its obligation hereunder to make available to such the Letter of Credit Issuer its percentage of any payment under any Letter of Credit on the date required, as specified above, but no Letter of Credit Participant shall be responsible for the failure of any other Letter of Credit Participant to make available to such the Letter of Credit Issuer such other Letter of Credit Participant’s 's Percentage of any such payment.
(cd) The obligation of the respective Letter of Credit Participants to make payments to the applicable Letter of Credit Issuer with respect to Letters of Credit shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever (provided that no Letter of Credit Participant shall be required to make payments resulting from the Letter of Credit Issuer’s 's gross negligence or willful misconduct) 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: :
(i) any set-off, counterclaim, recoupment, defense lack of validity or other right that such Letter enforceability of Credit Participant or any other Person may have against the Letter of Credit Issuer or any other Person for any reason whatsoever, this Agreement.
(ii) the existence of any claim, set-off, defense or other right which the Borrowers may have at any time against a Default or an Event of Default or the termination of the Committed Amount, (iii) any adverse change beneficiary named in the condition (financial or otherwise) of the Borrower or any of its Subsidiaries, (iv) any breach of this Agreement by the Borrower or any other a Letter of Credit ParticipantCredit, (v) any amendment, renewal or extension transferee of any Letter of Credit (or (vi) any person for whom any such transferee may be acting), any Agent or Lender or other circumstance, happening or event whatsoeverperson, whether or not similar to in connection with this Agreement, any of the foregoing. Whenever, at any time after the Letter of Credit Issuer has received from Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between any Borrower and the beneficiary named in any such Letter of Credit Participant the funds for its participation in a payment or disbursement, the Letter of Credit Issuer (or the Administrative Agent on its behalf) receives any payment on account thereof, the Administrative Agent or the Letter of Credit Issuer, as the case may be, will distribute to such Letter of Credit Participant its pro rata share of such payment; provided that if such payment is required to be returned for any reason to the Borrower or to a trustee, receiver, liquidator, custodian or similar official in any bankruptcy proceeding, such Letter of Credit Participant will return to the Administrative Agent or the Letter of Credit Issuer any portion thereof previously distributed by the Administrative Agent or the Letter of Credit Issuer to it.Credit);
(diii) Unless otherwise expressly agreed by the Letter of Credit Issuer and the Borrower when any draft, certificate or other document presented under a Letter of Credit is issued and subject proving to applicable lawsbe forged, fraudulent or invalid in any respect or any statement therein being untrue or inaccurate in any respect; or
(i) each standby Letter of Credit shall be governed by the “International Standby Practices 1998” (ISP98) (or such later revision as may be published by the Institute of International Banking Law & Practice on any date any Letter of Credit may be issued), (ii) each documentary Letter of Credit shall be governed by the Uniform Customs and Practices for Documentary Credits (2007 Revision), International Chamber of Commerce Publication No. 600 (or such later revision as may be published by the International Chamber of Commerce on any date any Letter of Credit may be issued) and (iiiiv) the Borrower shall specify the foregoing in each letter occurrence of credit application submitted for the issuance any Event of a Letter of CreditDefault.
Appears in 1 contract
Letter of Credit Participation. (a) Immediately upon the issuance by a Letter of Credit Issuer of a such Letter of Credit (or, with respect to any Existing Letters of Credit, on the Closing Date), the Letter of Credit Issuer shall be deemed to have sold and transferred to each Lender, and each Lender (each a “Letter of Credit Participant”) shall be deemed irrevocably and unconditionally to have purchased and received from the Letter of Credit Issuer, without recourse or warranty, an undivided interest and participation, in proportion to such Lender’s Commitment, in such Letter of Credit, each substitute letter of credit, each drawing made thereunder and the obligation of the Borrower under this Agreement with respect thereto (although the Letter of Credit Fee shall be payable directly to the Administrative Agent for the account of the Letter of Credit Participants as provided in Section 14.2) and any security therefor or guaranty pertaining thereto; provided, however, that for purposes of an Extended Letter of Credit, a Lender that did not consent to an Extended Letter of Credit shall not be deemed to be a Letter of Credit Participant in such Extended Letter of Credit.
(ab) In determining whether to pay under any Letter of Credit, a Letter of Credit Issuer shall not have any obligation relative to the respective Letter of Credit Participants other than to determine that any documents required to be delivered under such Letter of Credit have been delivered and that they appear comply on their face to substantially comply with the requirements of such Letter of Credit without responsibility for further investigation and regardless of any notice or information to the contraryCredit. Any action taken or omitted to be taken by a Letter of Credit Issuer under or in connection with any Letter of Credit, if taken or omitted in the absence of gross negligence or willful misconduct, shall not create for such Letter of Credit Issuer any resulting liability to the respective Letter of Credit Participants.
(bc) If for In the event that any reason a Base Rate Advance may not be (Letter of Credit Issuer makes any payment under any Letter of Credit issued thereby, upon receipt of notice thereof as determined provided in the sole discretion of the Administrative Agent), or is not, made in accordance with Section 3.11(a), then each Letter of Credit Participant (other than the Letter of Credit Issuer) shall promptly and unconditionally pay to such Letter of Credit Issuer, the amount of such Letter of Credit Participant’s Percentage of such payment in Dollars and in same day funds; provided, however, that no Letter of Credit Participant shall be obligated to pay to a Letter of Credit Issuer its percentage of such payment for any wrongful payment made by such Letter of Credit Issuer under a Letter of Credit as a result of acts or omissions constituting willful misconduct or gross negligence on the part of such Letter of Credit Issuer. If a Letter of Credit Issuer so notifies any Letter of Credit Participant required to fund a drawing under a Letter of Credit prior to 11:00 a.m. (New York time) on any Banking Day, such Letter of Credit Participant shall make available to the Letter of Credit Issuer such Letter of Credit Participant’s Percentage of the amount of such payment on such Banking Day in same day funds. If and to the extent such Letter of Credit Participant shall not have so made its percentage of the amount of such drawing available to the Letter of Credit Issuer, such Letter of Credit Participant agrees to pay to the Letter of Credit Issuer (through the Administrative Agent)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 Letter of Credit Issuer at the overnight Federal Funds Rate; provided that if such Letter of Credit Participant shall fail to make such payment to the Letter of Credit Issuer within three (3) Banking Days of such due date, then, retroactively to the due date, such Letter of Credit Participant shall be obligated to pay interest on such amount at the Base Effective Rate. The failure of any Letter of Credit Participant to make available to a Letter of Credit Issuer its percentage of any drawing under any Letter of Credit shall not relieve any other Letter of Credit Participant of its obligation hereunder to make available to such Letter of Credit Issuer its percentage of any payment under any Letter of Credit on the date required, as specified above, but no Letter of Credit Participant shall be responsible for the failure of any other Letter of Credit Participant to make available to such Letter of Credit Issuer such other Letter of Credit Participant’s Percentage of any such payment.
(cd) The obligation of the respective Letter of Credit Participants to make payments to the applicable Letter of Credit Issuer with respect to Letters of Credit shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever (provided that no Letter of Credit Participant shall be required to make payments resulting from the Letter of Credit Issuer’s gross negligence or willful misconduct) 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: :
(i) any set-off, counterclaim, recoupment, defense lack of validity or other right that such Letter enforceability of Credit Participant or any other Person may have against the Letter of Credit Issuer or any other Person for any reason whatsoever, this Agreement;
(ii) the existence of a Default any claim, set-off, defense or an Event of Default or the termination of the Committed Amount, (iii) any adverse change in the condition (financial or otherwise) of other right which the Borrower or may have at any of its Subsidiaries, (iv) any breach of this Agreement by the Borrower or any other time against a beneficiary named in a Letter of Credit ParticipantCredit, (v) any amendment, renewal or extension transferee of any Letter of Credit (or (vi) any person for whom any such transferee may be acting), any Creditor or other circumstance, happening or event whatsoeverperson, whether or not similar to in connection with this Agreement, any of the foregoing. Whenever, at any time after the Letter of Credit Issuer has received from Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the Borrower and the beneficiary named in any such Letter of Credit Participant the funds for its participation in a payment or disbursement, the Letter of Credit Issuer (or the Administrative Agent on its behalf) receives any payment on account thereof, the Administrative Agent or the Letter of Credit Issuer, as the case may be, will distribute to such Letter of Credit Participant its pro rata share of such payment; provided that if such payment is required to be returned for any reason to the Borrower or to a trustee, receiver, liquidator, custodian or similar official in any bankruptcy proceeding, such Letter of Credit Participant will return to the Administrative Agent or the Letter of Credit Issuer any portion thereof previously distributed by the Administrative Agent or the Letter of Credit Issuer to it.Credit);
(diii) Unless otherwise expressly agreed by the Letter of Credit Issuer and the Borrower when any draft, certificate or other document presented under a Letter of Credit is issued and subject proving to applicable lawsbe forged, fraudulent or invalid in any respect or any statement therein being untrue or inaccurate in any respect; or
(i) each standby Letter of Credit shall be governed by the “International Standby Practices 1998” (ISP98) (or such later revision as may be published by the Institute of International Banking Law & Practice on any date any Letter of Credit may be issued), (ii) each documentary Letter of Credit shall be governed by the Uniform Customs and Practices for Documentary Credits (2007 Revision), International Chamber of Commerce Publication No. 600 (or such later revision as may be published by the International Chamber of Commerce on any date any Letter of Credit may be issued) and (iiiiv) the Borrower shall specify the foregoing in each letter occurrence of credit application submitted for the issuance any Event of a Letter of CreditDefault.
Appears in 1 contract
Samples: Senior Secured Revolving Credit Facility (Seacor Holdings Inc /New/)
Letter of Credit Participation. (a) Immediately upon the ------------------------------ issuance by a the respective Issuing Bank of any Letter of Credit Issuer of a Letter of Credit (or, with respect to any Existing Letters of Credit, on the Closing Date), the Letter of Credit Issuer such Issuing Bank shall be deemed to have sold and transferred to each LenderBank, other than such Issuing Bank (each such Bank, in its capacity under this Section 2.04, a "Participant"), and each Lender (each a “Letter of Credit Participant”) such Participant shall be deemed irrevocably and unconditionally to have purchased and received from the Letter of Credit Issuersuch Issuing Bank, without recourse or warranty, an undivided interest and participation, in proportion to the extent of such Lender’s Commitment, Participant's Percentage in such Letter of Credit, each substitute letter of credit, each drawing or payment made thereunder and the obligation obligations of the Borrower under this Agreement with respect thereto (although the Letter of Credit Fee shall be payable directly to the Administrative Agent for the account of the Letter of Credit Participants as provided in Section 14.2) thereto, and any security therefor or guaranty pertaining thereto. Upon any change in the Revolving Loan Commitments of the Banks pursuant to Section 1.13 or 13.04, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings, there shall be an automatic adjustment to the participations pursuant to this Section 2.04 to reflect the new Percentages of the assignor and assignee Bank, as the case may be.
(ab) In determining whether to pay under any Letter of Credit, a Letter of Credit Issuer the respective Issuing Bank shall not have any no obligation relative to the respective Letter of Credit Participants other Banks other than to determine confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face to substantially comply with the requirements of such Letter of Credit without responsibility for further investigation and regardless of any notice or information to the contraryCredit. Any action taken or omitted to be taken by a Letter of Credit Issuer any Issuing Bank under or in connection with any Letter of Credit, Credit if taken or omitted in the absence of gross negligence or willful misconduct, shall not create for such Letter of Credit Issuer Issuing Bank any resulting liability to the respective Borrower, any other Credit Party, any Bank or any other Person.
(c) In the event that any Issuing Bank makes any payment under any Letter of Credit Participants.
(b) If for any reason a Base Rate Advance may and the Borrower shall not be (as determined have reimbursed such amount in the sole discretion of full to such Issuing Bank pursuant to Section 2.05(a), such Issuing Bank shall promptly notify the Administrative Agent), or is notwhich shall promptly notify each Participant of such failure, made in accordance with Section 3.11(a), then and each Letter of Credit Participant (other than the Letter of Credit Issuer) shall promptly and unconditionally pay to such Letter of Credit Issuer, Issuing Bank the amount of such Letter of Credit Participant’s 's Percentage of such unreimbursed payment in Dollars and in same day funds; provided, however, that no Letter of Credit Participant shall be obligated to pay to a Letter of Credit Issuer its percentage of such payment for any wrongful payment made by such Letter of Credit Issuer under a Letter of Credit as a result of acts or omissions constituting willful misconduct or gross negligence on the part of such Letter of Credit Issuer. If a Letter of Credit Issuer the Administrative Agent so notifies notifies, prior to 11:00 A.M. (New York time) on any Letter of Credit Business Day, any Participant required to fund a drawing payment under a Letter of Credit on any Banking DayCredit, such Letter of Credit Participant shall make available to the Letter of Credit Issuer such Letter of Credit Issuing Bank in Dollars such Participant’s 's Percentage of the amount of such payment on such Banking Business Day in same day funds. If and to the extent such Letter of Credit Participant shall not have so made its percentage Percentage of the amount of such drawing payment available to the Letter of Credit Issuersuch Issuing Bank, such Letter of Credit Participant agrees to pay to the Letter of Credit Issuer (through the Administrative Agent)such Issuing Bank, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to the Letter of Credit Issuer such Issuing Bank at the overnight Federal Funds Rate; provided that if such Letter of Credit Participant shall fail to make such payment to Rate for the Letter of Credit Issuer within first three (3) Banking Days of such due date, then, retroactively to the due date, such Letter of Credit Participant shall be obligated to pay interest on such amount days and at the interest rate applicable to Revolving Loans maintained as Base RateRate Loans for each day thereafter. The failure of any Letter of Credit Participant to make available to a Letter of Credit Issuer such Issuing Bank its percentage Percentage of any drawing payment under any Letter of Credit shall not relieve any other Letter of Credit Participant of its obligation hereunder to make available to such Letter Issuing Bank its Percentage of Credit Issuer its percentage of any payment under any Letter of Credit on the date required, as specified above, but no Letter of Credit Participant shall be responsible for the failure of any other Letter of Credit Participant to make available to such Letter of Credit Issuer Issuing Bank such other Letter of Credit Participant’s 's Percentage of any such payment.
(d) Whenever any Issuing Bank receives a payment of a reimbursement obligation as to which it has received any payments from the Participants pursuant to clause (c) The above, such Issuing Bank shall pay to each Participant which has paid its Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant's share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations.
(e) Upon the request of any Participant, each Issuing Bank shall furnish to such Participant copies of any Letter of Credit issued by it and such other documentation relating thereto as may reasonably be requested by such Participant.
(f) The obligations of the Participants to make payments to the applicable Letter of Credit Issuer each Issuing Bank with respect to Letters of Credit issued by it shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever (provided that no Letter of Credit Participant shall be required to make payments resulting from the Letter of Credit Issuer’s gross negligence or willful misconduct) 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: :
(i) any set-off, counterclaim, recoupment, defense lack of validity or other right that such Letter enforceability of Credit Participant this Agreement or any of the other Person may have against the Letter of Credit Issuer or any other Person for any reason whatsoever, Documents;
(ii) the existence of a Default any claim, setoff, defense or an Event of Default or the termination of the Committed Amount, (iii) any adverse change in the condition (financial or otherwise) of other right which the Borrower or any of its Subsidiaries, (iv) Subsidiaries may have at any breach of this Agreement by the Borrower or any other time against a beneficiary named in a Letter of Credit ParticipantCredit, (v) any amendment, renewal or extension transferee of any Letter of Credit (or (vi) any Person for whom any such transferee may be acting), the Administrative Agent, any Participant, or any other circumstance, happening or event whatsoeverPerson, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or not similar to any unrelated transactions (including any underlying transaction between the Borrower or any Subsidiary of the foregoing. Whenever, at any time after Borrower and the Letter of Credit Issuer has received from beneficiary named in any such Letter of Credit Participant the funds for its participation in a payment or disbursement, the Letter of Credit Issuer (or the Administrative Agent on its behalf) receives any payment on account thereof, the Administrative Agent or the Letter of Credit Issuer, as the case may be, will distribute to such Letter of Credit Participant its pro rata share of such payment; provided that if such payment is required to be returned for any reason to the Borrower or to a trustee, receiver, liquidator, custodian or similar official in any bankruptcy proceeding, such Letter of Credit Participant will return to the Administrative Agent or the Letter of Credit Issuer any portion thereof previously distributed by the Administrative Agent or the Letter of Credit Issuer to it.Credit);
(diii) Unless otherwise expressly agreed by the Letter of Credit Issuer and the Borrower when a Letter of Credit is issued and subject to applicable lawsany draft, (i) each standby Letter of Credit shall be governed by the “International Standby Practices 1998” (ISP98) (certificate or such later revision as may be published by the Institute of International Banking Law & Practice on any date other document presented under any Letter of Credit may proving to be issued)forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(ii) each documentary Letter of Credit shall be governed by the Uniform Customs and Practices for Documentary Credits (2007 Revision), International Chamber of Commerce Publication No. 600 (or such later revision as may be published by the International Chamber of Commerce on any date any Letter of Credit may be issued) and (iiiiv) the Borrower shall specify the foregoing in each letter surrender or impairment of credit application submitted any security for the issuance performance or observance of a Letter any of Creditthe terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default.
Appears in 1 contract
Letter of Credit Participation. (a) Immediately upon the issuance by a an Issuer of any Facility Letter of Credit Issuer of a Letter of Credit in accordance with the procedures set forth in Section 2.19.3, (or, i) with respect to any Existing Letters each U.S. Facility Letter of Credit, on the Closing Date), the Letter of Credit Issuer each Lender shall be deemed to have sold and transferred to each Lender, and each Lender (each a “Letter of Credit Participant”) shall be deemed irrevocably and unconditionally to have purchased and received from the Letter of Credit such Issuer, without recourse or warranty, an undivided interest and participation, in proportion participation equal to such Lender’s Commitment, its Revolving Credit Commitment Percentage in such U.S. Facility Letter of Credit (including, without limitation, all obligations of the applicable Borrower with respect thereto) and any security therefor or guaranty pertaining thereto and (ii) with respect to each Multicurrency Facility Letter of Credit, each substitute letter of credit, each drawing made thereunder and the obligation of Designated Multicurrency Lender with respect to the Borrower under this Agreement with respect thereto (although for the account of which such Multicurrency Facility Letter of Credit Fee is issued shall be payable directly deemed to have irrevocably and unconditionally purchased and received from such Issuer, without recourse or warranty, an undivided interest and participation equal to its Multicurrency Commitment Percentage in such Multicurrency Facility Letter of Credit (including, without limitation, all obligations of the applicable Borrower with respect thereto), any security therefor or guaranty pertaining thereto; provided, that a Letter of Credit issued by an Issuer shall not be deemed to be a Facility Letter of Credit for purposes of this Section 2.19 if such Issuer shall have received written notice from any Lender on or before one Business Day prior to the date of its issuance of such Letter of Credit that one or more of the applicable conditions contained in Article IV are not then satisfied, and, in the event an Issuer receives such a notice, it shall have no further 38 45 obligation to issue any Letter of Credit until such notice is withdrawn by that Lender or such condition has been effectively waived in accordance with the provisions of this Agreement.
(b) In the event that an Issuer makes any payment under any Facility Letter of Credit and the applicable Borrower shall not have repaid such amount to the Issuer pursuant to Section 2.19.4, the Issuer shall promptly notify the Administrative Agent and each Lender participating in such Letter of Credit of such failure, and each Lender participating in such Letter of Credit shall promptly and unconditionally make a Revolving Credit Loan or a Multicurrency Loan, as applicable, to the Administrative Agent for the account of the Letter of Credit Participants as provided such Issuer in Section 14.2) and any security therefor or guaranty pertaining thereto.
(a) In determining whether to pay under any Letter of Credit, a Letter of Credit Issuer shall not have any obligation relative to the respective Letter of Credit Participants other than to determine that any documents required to be delivered under such Letter of Credit have been delivered and that they appear on their face to substantially comply with the requirements of such Letter of Credit without responsibility for further investigation and regardless of any notice or information to the contrary. Any action taken or omitted to be taken by a Letter of Credit Issuer under or in connection with any Letter of Credit, if taken or omitted in the absence of gross negligence or willful misconduct, shall not create for such Letter of Credit Issuer any resulting liability to the respective Letter of Credit Participants.
(b) If for any reason a Base Rate Advance may not be (as determined in the sole discretion of the Administrative Agent), or is not, made in accordance with Section 3.11(a), then each Letter of Credit Participant (other than the Letter of Credit Issuer) shall promptly and unconditionally pay to such Letter of Credit Issuer, the amount of such Lender's Revolving Credit Commitment Percentage or Multicurrency Commitment Percentage, as the case may be, of the unreimbursed amount of any such payment. If any Lender participating in such Facility Letter of Credit Participant’s Percentage of such payment in Dollars and in same day funds; provided, however, that no Letter of Credit Participant shall be obligated fails to pay to a Letter of Credit Issuer its percentage of such payment for any wrongful payment made by such Letter of Credit Issuer under a Letter of Credit as a result of acts or omissions constituting willful misconduct or gross negligence on the part of such Letter of Credit Issuer. If a Letter of Credit Issuer so notifies any Letter of Credit Participant required to fund a drawing under a Letter of Credit on any Banking Day, such Letter of Credit Participant shall make available to the Letter of Credit such Issuer any Loans due to such Letter of Credit Participant’s Percentage of Issuer pursuant to this Section 2.19.5(b), such Issuer shall be entitled to recover the amount of such payment on such Banking Day in same day funds. If and to the extent such Letter of Credit Participant shall not have so made its percentage of the amount of such drawing available to the Letter of Credit Issuer, such Letter of Credit Participant agrees to pay to the Letter of Credit Issuer (through the Administrative Agent), forthwith on demand such amountunpaid Loans, together with interest thereonthereon at the Federal Funds Effective Rate, for each day from the first three Business Days after such date until the date Lender receives such amount is paid to the Letter of Credit Issuer notice and thereafter, at the overnight Federal Funds Floating Rate; provided that if , payable (i) on demand, (ii) by setoff against any payments made to such Letter Issuer for the account of Credit Participant shall fail to make such Lender or (iii) by payment to such Issuer by the Letter Administrative Agent of Credit Issuer within three (3) Banking Days of amounts otherwise payable to such due date, then, retroactively to the due date, such Letter of Credit Participant shall be obligated to pay interest on such amount at the Base RateLender under this Agreement. The failure of any Letter of Credit Participant Lender to make available to a Letter the Administrative Agent Loans in its Revolving Credit Commitment Percentage or Multicurrency Commitment Percentage, as the case may be, of Credit Issuer its percentage the unreimbursed amount of any drawing under any Letter of Credit such payment shall not relieve any other Letter of Credit Participant Lender of its obligation hereunder to make available to such Letter the Administrative Agent its Revolving Credit Commitment Percentage or Multicurrency Commitment Percentage, as the case may be, of Credit Issuer its percentage the unreimbursed amount of any payment under any Letter of Credit on the date required, as specified abovesuch payment is to be made, but no Letter of Credit Participant Lender shall be responsible for the failure of any other Letter of Credit Participant Lender to make available to such Letter the Administrative Agent its Revolving Credit Commitment Percentage or Multicurrency Commitment Percentage, as the case may be, of Credit Issuer such other Letter of Credit Participant’s Percentage the unreimbursed amount of any payment on the date such paymentpayment is to be made. In addition to the foregoing, if any Revolving Credit Loan or Multicurrency Loan cannot for any reason be made on the date required above or if for any other reason any Lender fails to make payment to the applicable Issuer of any amount due under this Section 2.7.2, such Lender shall be deemed, at the option of the Administrative Agent, to have unconditionally and irrevocably purchased from the Issuer, without recourse or warranty, an undivided interest and participation in the unreimbursed obligations in the U.S. Dollar Equivalent of such unpaid amount. Without limiting the foregoing, immediately upon any Conversion Event, the provisions of Section 12.4 shall apply to any Multicurrency Facility Letters of Credit.
(c) Whenever the Issuer receives a payment on account of a Reimbursement Obligation, including any interest thereon, it shall promptly pay to each Lender which has funded its participating interest therein, in immediately available funds, an amount equal to such Lender's Revolving Credit Commitment Percentage or Multicurrency Commitment Percentage, as the case may be, thereof.
(d) The obligation obligations of the respective Letter of Credit Participants a Lender to make payments to the applicable Letter of Credit Issuer Administrative Agent with respect to Letters a Facility Letter of Credit shall be irrevocable absolute, unconditional and irrevocable, not subject to any counterclaim, set-off or other defense or any other setoff, qualification or exception whatsoever (provided that no Letter of Credit Participant shall be required to make payments resulting from the Letter of Credit Issuer’s gross negligence or willful misconduct) and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, .
(e) In the event any of payment by a Borrower received by the following circumstances: (i) any set-off, counterclaim, recoupment, defense or other right that such Administrative Agent with respect to a Facility Letter of Credit Participant or any other Person may have against the Letter of Credit Issuer or any other Person for any reason whatsoever, (ii) the existence of a Default or an Event of Default or the termination of the Committed Amount, (iii) any adverse change in the condition (financial or otherwise) of the Borrower or any of its Subsidiaries, (iv) any breach of this Agreement and distributed by the Borrower or any other Letter of Credit Participant, (v) any amendment, renewal or extension of any Letter of Credit or (vi) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing. Whenever, at any time after the Letter of Credit Issuer has received from any such Letter of Credit Participant the funds for its participation in a payment or disbursement, the Letter of Credit Issuer (or the Administrative Agent on its behalf) receives any payment to the Lenders on account thereofof their participations is thereafter set aside, avoided or recovered from the Administrative Agent in connection with any receivership, liquidation, reorganization or bankruptcy proceeding, each Lender which received such distribution shall, upon demand by the Letter of Agent, contribute such Lender's Revolving Credit IssuerCommitment Percentage or Multicurrency Commitment Percentage, as the case may be, will distribute to such Letter of Credit Participant its pro rata share of such payment; provided that if such payment is the amount set aside, avoided 39 46 or recovered together with interest at the rate required to be returned for any reason to the Borrower or to a trustee, receiver, liquidator, custodian or similar official in any bankruptcy proceeding, such Letter of Credit Participant will return to the Administrative Agent or the Letter of Credit Issuer any portion thereof previously distributed paid by the Administrative Agent or upon the Letter of Credit Issuer amount required to be repaid by it.
(d) Unless otherwise expressly agreed by the Letter of Credit Issuer and the Borrower when a Letter of Credit is issued and subject to applicable laws, (i) each standby Letter of Credit shall be governed by the “International Standby Practices 1998” (ISP98) (or such later revision as may be published by the Institute of International Banking Law & Practice on any date any Letter of Credit may be issued), (ii) each documentary Letter of Credit shall be governed by the Uniform Customs and Practices for Documentary Credits (2007 Revision), International Chamber of Commerce Publication No. 600 (or such later revision as may be published by the International Chamber of Commerce on any date any Letter of Credit may be issued) and (iii) the Borrower shall specify the foregoing in each letter of credit application submitted for the issuance of a Letter of Credit.
Appears in 1 contract
Samples: 5 Year Revolving Credit Agreement (Arvinmeritor Inc)
Letter of Credit Participation. (a) Immediately upon the issuance by a the respective Issuing Lender of any Letter of Credit Issuer of a Letter of Credit (or, with respect to any Existing Letters of Credit, on the Closing Date), the Letter of Credit Issuer such Issuing Lender shall be deemed to have sold and transferred to each Lender with a Revolving Loan Commitment, other than such Issuing Lender (each such Lender, in its capacity under this Section 2.04, a "Participant"), and each Lender (each a “Letter of Credit Participant”) such Participant shall be deemed irrevocably and unconditionally to have purchased and received from the Letter of Credit Issuersuch Issuing Lender, without recourse or warranty, an undivided interest and participation, in proportion to the extent of such Lender’s CommitmentParticipant's RL Percentage, in such Letter of Credit, each substitute letter of credit, each drawing or payment made thereunder and the obligation obligations of the Borrower Borrowers under this Agreement with respect thereto (although the Letter of Credit Fee shall be payable directly to the Administrative Agent for the account of the Letter of Credit Participants as provided in Section 14.2) thereto, and any security therefor or guaranty pertaining thereto. Upon any change in the Revolving Loan Commitments of the Lenders pursuant to Section 1.13 or 14.04, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings, there shall be an automatic adjustment to the participations pursuant to this Section 2.04 to reflect the new RL Percentages of the assignor and assignee Lender, as the case may be.
(ab) In determining whether to pay under any Letter of Credit, a Letter of Credit Issuer the respective Issuing Lender shall not have any no obligation relative to the respective Letter of Credit Participants other Lenders other than to determine confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face to substantially comply with the requirements of such Letter of Credit without responsibility for further investigation and regardless of any notice or information to the contraryCredit. Any action taken or omitted to be taken by a Letter of Credit Issuer any Issuing Lender under or in connection with any Letter of Credit, Credit if taken or omitted in the absence of gross negligence or willful misconductmisconduct (as determined by a court of competent jurisdiction in a final and non-appealable decision), shall not create for such Letter of Credit Issuer Issuing Lender any resulting liability to either Borrower, any other Credit Party, any Lender or any other Person.
(c) In the respective event that any Issuing Lender makes any payment under any Letter of Credit Participants.
(b) If for any reason a Base Rate Advance may and the Borrowers shall not be (as determined have reimbursed such amount in the sole discretion of full to such Issuing Lender pursuant to Section 2.05(a), such Issuing Lender shall promptly notify the Administrative Agent), or is notwhich shall promptly notify each Participant of such failure, made in accordance with Section 3.11(a), then and each Letter of Credit Participant (other than the Letter of Credit Issuer) shall promptly and unconditionally pay to such Letter of Credit Issuer, Issuing Lender the amount of such Letter of Credit Participant’s 's RL Percentage of such unreimbursed payment in Dollars and in same day funds; provided, however, that no Letter of Credit Participant shall be obligated to pay to a Letter of Credit Issuer its percentage of such payment for any wrongful payment made by such Letter of Credit Issuer under a Letter of Credit as a result of acts or omissions constituting willful misconduct or gross negligence on the part of such Letter of Credit Issuer. If a Letter of Credit Issuer the Administrative Agent so notifies notifies, prior to 11:00 A.M. (New York time) on any Letter of Credit Business Day, any Participant required to fund a drawing payment under a Letter of Credit on any Banking DayCredit, such Letter of Credit Participant shall make available to the Letter of Credit Issuer such Letter of Credit Issuing Lender in Dollars such Participant’s 's RL Percentage of the amount of such payment on such Banking Business Day in same day funds. If and to the extent such Letter of Credit Participant shall not have so made its percentage RL Percentage of the amount of such drawing payment available to the Letter of Credit Issuersuch Issuing Lender, such Letter of Credit Participant agrees to pay to the Letter of Credit Issuer (through the Administrative Agent)such Issuing Lender, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to the Letter of Credit Issuer such Issuing Lender at the overnight Federal Funds Rate; provided that if such Letter of Credit Participant shall fail to make such payment to Rate for the Letter of Credit Issuer within first three (3) Banking Days of such due date, then, retroactively to the due date, such Letter of Credit Participant shall be obligated to pay interest on such amount days and at the interest rate applicable to Revolving Loans maintained as Base RateRate Loans for each day thereafter. The failure of any Letter of Credit Participant to make available to a Letter of Credit Issuer such Issuing Lender its percentage RL Percentage of any drawing payment under any Letter of Credit shall not relieve any other Letter of Credit Participant of its obligation hereunder to make available to such Letter Issuing Lender its RL Percentage of Credit Issuer its percentage of any payment under any Letter of Credit on the date required, as specified above, but no Letter of Credit Participant shall be responsible for the failure of any other Letter of Credit Participant to make available to such Letter of Credit Issuer Issuing Lender such other Letter of Credit Participant’s 's RL Percentage of any such payment.
(d) Whenever any Issuing Lender receives a payment of a reimbursement obligation as to which it has received any payments from the Participants pursuant to clause (c) The above, such Issuing Lender shall pay to each Participant which has paid its RL Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant's share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations.
(e) Upon the request of any Participant, each Issuing Lender shall furnish to such Participant copies of any Letter of Credit issued by it and such other documentation relating thereto as may reasonably be requested by such Participant.
(f) The obligations of the Participants to make payments to the applicable Letter of Credit Issuer each Issuing Lender with respect to Letters of Credit issued by it shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever (provided that no Letter of Credit Participant shall be required to make payments resulting from the Letter of Credit Issuer’s gross negligence or willful misconduct) 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: :
(i) any set-off, counterclaim, recoupment, defense lack of validity or other right that such Letter enforceability of Credit Participant this Agreement or any of the other Person may have against the Letter of Credit Issuer or any other Person for any reason whatsoever, Documents;
(ii) the existence of a Default any claim, setoff, defense or an Event of Default or the termination of the Committed Amount, (iii) any adverse change in the condition (financial or otherwise) of the other right which either Borrower or any of its Subsidiaries, (iv) Subsidiaries may have at any breach of this Agreement by the Borrower or any other time against a beneficiary named in a Letter of Credit ParticipantCredit, (v) any amendment, renewal or extension transferee of any Letter of Credit (or (vi) any Person for whom any such transferee may be acting), the Administrative Agent, any Participant, or any other circumstance, happening or event whatsoeverPerson, whether or not similar to in connection with this Agreement, any of the foregoing. Whenever, at any time after the Letter of Credit Issuer has received from Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between either Borrower or any Subsidiary of either Borrower and the beneficiary named in any such Letter of Credit Participant the funds for its participation in a payment or disbursement, the Letter of Credit Issuer (or the Administrative Agent on its behalf) receives any payment on account thereof, the Administrative Agent or the Letter of Credit Issuer, as the case may be, will distribute to such Letter of Credit Participant its pro rata share of such payment; provided that if such payment is required to be returned for any reason to the Borrower or to a trustee, receiver, liquidator, custodian or similar official in any bankruptcy proceeding, such Letter of Credit Participant will return to the Administrative Agent or the Letter of Credit Issuer any portion thereof previously distributed by the Administrative Agent or the Letter of Credit Issuer to it.Credit);
(diii) Unless otherwise expressly agreed by the Letter of Credit Issuer and the Borrower when a Letter of Credit is issued and subject to applicable lawsany draft, (i) each standby Letter of Credit shall be governed by the “International Standby Practices 1998” (ISP98) (certificate or such later revision as may be published by the Institute of International Banking Law & Practice on any date other document presented under any Letter of Credit may proving to be issued)forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(ii) each documentary Letter of Credit shall be governed by the Uniform Customs and Practices for Documentary Credits (2007 Revision), International Chamber of Commerce Publication No. 600 (or such later revision as may be published by the International Chamber of Commerce on any date any Letter of Credit may be issued) and (iiiiv) the Borrower shall specify the foregoing in each letter surrender or impairment of credit application submitted any security for the issuance performance or observance of a Letter any of Creditthe terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default.
Appears in 1 contract
Letter of Credit Participation. (a) Immediately upon the issuance by a the respective Issuing Lender of any Letter of Credit Issuer of a Letter of Credit (or, with respect to any Existing Letters of Credit, on the Closing Date), the Letter of Credit Issuer such Issuing Lender shall be deemed to have sold and transferred to each RL Lender, other than such Issuing Lender (each such RL Lender, in its capacity under this Section 2.04, a "Participant"), and each Lender (each a “Letter of Credit Participant”) such Participant shall be deemed irrevocably and unconditionally to have purchased and received from the Letter of Credit Issuersuch Issuing Lender, without recourse or warranty, an undivided interest and participation, in proportion to the extent of such Lender’s Commitment, Participant's RL Percentage in such Letter of Credit, each substitute letter of credit, each drawing or payment made thereunder and the obligation obligations of the Borrower under this Agreement with respect thereto (although the Letter of Credit Fee shall be payable directly to the Administrative Agent for the account of the Letter of Credit Participants as provided in Section 14.2) thereto, and any security therefor or guaranty pertaining thereto. Upon any change in the Revolving Loan Commitments of the Lenders pursuant to Section 1.13 or 13.04, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings, there shall be an automatic adjustment to the participations pursuant to this Section 2.04 to reflect the new RL Percentages of the assignor and assignee Lender, as the case may be.
(ab) In determining whether to pay under any Letter of Credit, a Letter of Credit Issuer the respective Issuing Lender shall not have any no obligation relative to the respective Letter of Credit Participants other Lenders other than to determine confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face to substantially comply with the requirements of such Letter of Credit without responsibility for further investigation and regardless of any notice or information to the contraryCredit. Any action taken or omitted to be taken by a Letter of Credit Issuer any Issuing Lender under or in connection with any Letter of Credit, Credit if taken or omitted in the absence of gross negligence or willful misconduct, shall not create for such Letter of Credit Issuer Issuing Lender any resulting liability to the respective Borrower, any other Credit Party, any Lender or any other Person.
(c) In the event that any Issuing Lender makes any payment under any Letter of Credit Participants.
(b) If for any reason a Base Rate Advance may and the Borrower shall not be (as determined have reimbursed such amount in the sole discretion of full to such Issuing Lender pursuant to Section 2.05(a), such Issuing Lender shall promptly notify the Administrative Agent), or is notwhich shall promptly notify each Participant of such failure, made in accordance with Section 3.11(a), then and each Letter of Credit Participant (other than the Letter of Credit Issuer) shall promptly and unconditionally pay to such Letter of Credit Issuer, Issuing Lender the amount of such Letter of Credit Participant’s 's RL Percentage of such unreimbursed payment in Dollars and in same day funds; provided, however, that no Letter of Credit Participant shall be obligated to pay to a Letter of Credit Issuer its percentage of such payment for any wrongful payment made by such Letter of Credit Issuer under a Letter of Credit as a result of acts or omissions constituting willful misconduct or gross negligence on the part of such Letter of Credit Issuer. If a Letter of Credit Issuer the Administrative Agent so notifies notifies, prior to 11:00 A.M. (New York time) on any Letter of Credit Business Day, any Participant required to fund a drawing payment under a Letter of Credit on any Banking DayCredit, such Letter of Credit Participant shall make available to the Letter of Credit Issuer such Letter of Credit Issuing Lender in Dollars such Participant’s 's RL Percentage of the amount of such payment on such Banking Business Day in same day funds. If and to the extent such Letter of Credit Participant shall not have so made its percentage RL Percentage of the amount of such drawing payment available to the Letter of Credit Issuersuch Issuing Lender, such Letter of Credit Participant agrees to pay to the Letter of Credit Issuer (through the Administrative Agent)such Issuing Lender, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to the Letter of Credit Issuer such Issuing Lender at the overnight Federal Funds Rate; provided that if such Letter of Credit Participant shall fail to make such payment to Rate for the Letter of Credit Issuer within first three (3) Banking Days of such due date, then, retroactively to the due date, such Letter of Credit Participant shall be obligated to pay interest on such amount days and at the interest rate applicable to Revolving Loans maintained as Base RateRate Loans for each day thereafter. The failure of any Letter of Credit Participant to make available to a Letter of Credit Issuer such Issuing Lender its percentage RL Percentage of any drawing payment under any Letter of Credit shall not relieve any other Letter of Credit Participant of its obligation hereunder to make available to such Letter Issuing Lender its RL Percentage of Credit Issuer its percentage of any payment under any Letter of Credit on the date required, as specified above, but no Letter of Credit Participant shall be responsible for the failure of any other Letter of Credit Participant to make available to such Letter of Credit Issuer Issuing Lender such other Letter of Credit Participant’s 's RL Percentage of any such payment.
(d) Whenever any Issuing Lender receives a payment of a reimbursement obligation as to which it has received any payments from the Participants pursuant to clause (c) The above, such Issuing Lender shall pay to each Participant which has paid its RL Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant's share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations.
(e) Upon the request of any Participant, each Issuing Lender shall furnish to such Participant copies of any Letter of Credit issued by it and such other documentation relating thereto as may reasonably be requested by such Participant.
(f) The obligations of the Participants to make payments to the applicable Letter of Credit Issuer each Issuing Lender with respect to Letters of Credit issued by it shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever (provided that no Letter of Credit Participant shall be required to make payments resulting from the Letter of Credit Issuer’s gross negligence or willful misconduct) 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: :
(i) any set-off, counterclaim, recoupment, defense lack of validity or other right that such Letter enforceability of Credit Participant this Agreement or any of the other Person may have against the Letter of Credit Issuer or any other Person for any reason whatsoever, Documents;
(ii) the existence of a Default any claim, setoff, defense or an Event of Default or the termination of the Committed Amount, (iii) any adverse change in the condition (financial or otherwise) of other right which the Borrower or any of its Subsidiaries, (iv) Subsidiaries may have at any breach of this Agreement by the Borrower or any other time against a beneficiary named in a Letter of Credit ParticipantCredit, (v) any amendment, renewal or extension transferee of any Letter of Credit (or (vi) any Person for whom any such transferee may be acting), the Administrative Agent, any Participant, or any other circumstance, happening or event whatsoeverPerson, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or not similar to any unrelated transactions (including any underlying transaction between the Borrower or any Subsidiary of the foregoing. Whenever, at any time after Borrower and the Letter of Credit Issuer has received from beneficiary named in any such Letter of Credit Participant the funds for its participation in a payment or disbursement, the Letter of Credit Issuer (or the Administrative Agent on its behalf) receives any payment on account thereof, the Administrative Agent or the Letter of Credit Issuer, as the case may be, will distribute to such Letter of Credit Participant its pro rata share of such payment; provided that if such payment is required to be returned for any reason to the Borrower or to a trustee, receiver, liquidator, custodian or similar official in any bankruptcy proceeding, such Letter of Credit Participant will return to the Administrative Agent or the Letter of Credit Issuer any portion thereof previously distributed by the Administrative Agent or the Letter of Credit Issuer to it.Credit);
(diii) Unless otherwise expressly agreed by the Letter of Credit Issuer and the Borrower when a Letter of Credit is issued and subject to applicable lawsany draft, (i) each standby Letter of Credit shall be governed by the “International Standby Practices 1998” (ISP98) (certificate or such later revision as may be published by the Institute of International Banking Law & Practice on any date other document presented under any Letter of Credit may proving to be issued)forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(ii) each documentary Letter of Credit shall be governed by the Uniform Customs and Practices for Documentary Credits (2007 Revision), International Chamber of Commerce Publication No. 600 (or such later revision as may be published by the International Chamber of Commerce on any date any Letter of Credit may be issued) and (iiiiv) the Borrower shall specify the foregoing in each letter surrender or impairment of credit application submitted any security for the issuance performance or observance of a Letter any of Creditthe terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default.
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