Letter of Credit Participations. Immediately upon the issuance by any Facing Agent of any Letter of Credit, such Facing Agent shall be deemed to have sold and transferred to (i) each Multicurrency Revolving Lender with respect to each Multicurrency Letter of Credit and (ii) each Canadian Revolving Lender with respect to each Canadian Letter of Credit, in each case, other than such Facing Agent (each such Lender, in its capacity under this Section 2.10(e), a “LC Participant”), and each such LC Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Facing Agent, without recourse or warranty, an undivided interest and participation, to the extent of such Revolving Lender’s Multicurrency Revolver Pro Rata Share (with respect to Multicurrency Letters of Credit) and such Canadian Lender’s Canadian Revolver Pro Rata Share (with respect to Canadian Letters of Credit), as the case may be, in such Letter of Credit, each substitute Letter of Credit, each Drawing made thereunder and the obligations of the Borrowers under this Agreement with respect thereto (although Letter of Credit fees shall be payable directly to Administrative Agent for the account of the LC Participant as provided in Section 2.10(g) and the LC Participants shall have no right to receive any portion of the facing fees), and any security therefor or guaranty pertaining thereto. Upon any change in the Multicurrency Revolving Commitments of the Multicurrency Revolving Lenders or the Canadian Revolving Commitments of the Canadian Revolving Lenders, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings relating to Letters of Credit, there shall be an automatic adjustment pursuant to this Section 2.10(e) to reflect the new Multicurrency Revolver Pro Rata Share or Canadian Revolver Pro Rata Share, as the case may be, of the assignor and assignee Lender or of all Lenders with Multicurrency Revolving Commitments or Canadian Revolving Commitments, as the case may be. In determining whether to pay under any Letter of Credit, such Facing Agent shall have no obligation relative to the LC Participants other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by any Facing Agent under or in connection with any Letter of Credit issued by it if taken or omitted in the absence of gross negligence or willful misconduct as determined by a final and non-appealable judgment rendered by a court of competent jurisdiction, shall not create for such Facing Agent any resulting liability to any Credit Party or any Lender.
Appears in 3 contracts
Samples: Credit Agreement (Crown Holdings Inc), Credit Agreement (Crown Holdings Inc), Credit Agreement (Crown Holdings Inc)
Letter of Credit Participations. (a) Immediately upon the issuance by any Facing Agent Issuing Lender of any Letter of CreditCredit under a Tranche, such Facing Agent Issuing Lender shall be deemed to have sold and transferred to (i) in the case of a Canadian Borrower Letter of Credit, each Multicurrency Revolving Canadian Borrower RL Lender and (ii) in the case of a U.S. Borrower Letter of Credit, each U.S. Borrower RL Lender (each such Lender with respect to each Multicurrency Letter of Credit and (ii) each Canadian Revolving Lender with respect to each Canadian any Letter of Credit, in each case, other than such Facing Agent (each such Lender, in its capacity under this Section 2.10(e)3.04, a “LC Participant”), and each such LC Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Facing AgentIssuing Lender, without recourse or warranty, an undivided interest and participation, in a percentage equal to (x) in the extent case of such Revolving Lender’s Multicurrency Revolver Pro Rata Share (with respect to Multicurrency Letters a Canadian Borrower Letter of Credit, such Participant’s Canadian Borrower RL Percentage or (y) and in the case of a U.S. Borrower Letter of Credit, such Participant’s U.S. Borrower RL Percentage, in such Canadian Lender’s Canadian Revolver Pro Rata Share (with respect to Canadian Letters Borrower Letter of Credit or U.S. Borrower Letter of Credit), as the case may be, in such Letter of Credit, each substitute Letter of Credit, each Drawing drawing or payment made thereunder (each, a “Drawing”) and the obligations of the Borrowers respective Borrower under this Agreement with respect thereto (although Letter of Credit fees Fees shall be payable directly to the Administrative Agent for the account of the LC Participant Canadian Borrower RL Lenders or U.S. Borrower RL Lenders, as the case may be, as provided in Section 2.10(g4.01(b) and the LC Participants shall have no right to receive any portion of the facing fees), any Facing Fees with respect to any such Letters of Credit) and any security therefor or guaranty pertaining thereto. Upon any change in the Multicurrency Revolving Commitments of the Multicurrency Revolving Lenders or (x) the Canadian Borrower Revolving Loan Commitments and, as a result thereof the Canadian Borrower RL Percentages, of the Canadian Revolving LendersBorrower RL Lenders pursuant to Sections 2.13 or 13.04, it is hereby agreed that, with respect to all outstanding Canadian Borrower Letters of Credit and Unpaid Drawings relating to Letters of Creditthereto, there shall be an automatic adjustment to the participations pursuant to this Section 2.10(e) 3.04 to reflect the new Multicurrency Revolver Pro Rata Share Canadian Borrower RL Percentages of the Canadian Borrower RL Lenders and (y) the U.S. Borrower Revolving Loan Commitments and, as a result thereof the U.S. Borrower RL Percentages, of the U.S. Borrower RL Lenders pursuant to Sections 2.13, 2.16 or 13.04, it is hereby agreed that with respect to all outstanding U.S. Borrower Letters of Credit and Unpaid Drawings relating thereto, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 to reflect the new U.S. Borrower RL Percentages of the U.S. Borrower RL Lenders. With respect to each Letter of Credit from time to time outstanding, the percentage participations therein of the various Canadian Revolver Pro Rata ShareBorrower RL Lenders (in the case of a Canadian Borrower Letter of Credit) or U.S. Borrower RL Lenders (in the case of a U.S. Borrower Letter of Credit) calculated as provided above in this Section 3.04(a) are herein called the “L/C Participation Percentages” of the various Canadian Borrower RL Lenders or U.S. Borrower RL Lenders, as the case may be, in such Letters of Credit. All calculations of the assignor and assignee Lender or of all Lenders with Multicurrency Revolving Commitments or Canadian Revolving CommitmentsL/C Participation Percentages shall be made from time to time by the Administrative Agent, as the case may be. which calculations shall be conclusive absent manifest error.
(b) In determining whether to pay under any Letter of CreditCredit under a Tranche, such Facing Agent no Issuing Lender shall have no any obligation relative to the LC Participants other Lenders under such Tranche other than to 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 with the requirements of such Letter of Credit. Any action taken or omitted to be taken by any Facing Agent an Issuing Lender under or in connection with any Letter of Credit issued by it if shall not create for such Issuing Lender any resulting liability to the respective Borrower, any other Credit Party, any Lender or any other Person unless such action is taken or omitted in the absence of to be taken with gross negligence or willful misconduct on the part of such Issuing Lender (as determined by a court of competent jurisdiction in a final and non-appealable judgment rendered decision).
(c) In the event that an Issuing Lender makes any payment under any Letter of Credit under a Tranche issued by it and the U.S. Borrower or the Canadian Borrower, as applicable, shall not have reimbursed such amount in full to such Issuing Lender pursuant to Section 3.05(a), such Issuing Lender shall promptly notify the Administrative Agent, which shall promptly notify each Participant under such Tranche (i.e., either (x) the Canadian Borrower RL Lenders in the case of a Canadian Borrower Letter of Credit or (y) the U.S. Borrower RL Lenders in the case of a U.S. Borrower Letter of Credit) of such failure, and each Participant shall promptly and unconditionally pay to such Issuing Lender the amount of such Participant’s L/C Participation Percentage (as relates to the respective Letter of Credit) of such unreimbursed payment in U.S. Dollars (or, to the extent the unreimbursed payment is, in accordance with Section 3.05(a), to be reimbursed in Canadian Dollars, in Canadian Dollars) and in same day funds. If the Administrative Agent so notifies, prior to 12:00 Noon (New York City time) on any Business Day, any Participant under a Tranche required to fund a payment under a Letter of Credit under such Tranche, such Participant shall make available to the respective Issuing Lender in U.S. Dollars (or in Canadian Dollars to the extent such amount is required to be paid in Canadian Dollars pursuant to Section 3.05) such Participant’s L/C Participation Percentage (as relates to the respective Letter of Credit) of the amount of such payment on such Business Day in same day funds. If and to the extent such Participant shall not have so made its L/C Participation Percentage of the amount of such payment available to the respective Issuing Lender, such Participant agrees to pay to 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 such Issuing Lender at the overnight Federal Funds Rate (or, in the case of amounts owed in Canadian Dollars, the cost to the Administrative Agent of acquiring overnight funds in Canadian Dollars) for the first three days and at the interest rate applicable to Revolving Loans that are maintained as Base Rate Loans for each day thereafter. The failure of any Participant under a Tranche to make available to an Issuing Lender its relevant L/C Participation Percentage of any payment under any Letter of Credit under such Tranche issued by such Issuing Lender shall not relieve any other Participant under such Tranche of its obligation hereunder to make available to such Issuing Lender its relevant L/C Participation Percentage of any payment under any Letter of Credit under such Tranche on the date required, as specified above, but no Participant under such Tranche shall be responsible for the failure of any other Participant under such Tranche to make available to such Issuing Lender such other Participant’s relevant L/C Participation Percentage of any such payment.
(d) Whenever an Issuing Lender receives a payment of a reimbursement obligation as to which it has received any payments from the Participants pursuant to clause (c) above, such Issuing Lender shall pay to each such Participant which has paid its RL Percentage thereof, in U.S. Dollars (or, in Canadian Dollars in the case of payments to be made in Canadian Dollars pursuant to Section 3.05(a)) 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 under a Tranche, each Issuing Lender shall furnish to such Participant copies of any standby Letter of Credit under such Tranche issued by it and such other documentation as may reasonably be requested by such Participant.
(f) The obligations of the Participants under a Tranche to make payments to each Issuing Lender with respect to Letters of Credit under such Tranche shall be irrevocable and not subject to any qualification or exception whatsoever (except in the case of an Issuing Lender’s gross negligence or willful misconduct (as determined by a court of competent jurisdictionjurisdiction in a final and non-appealable decision)) and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, shall not create for such Facing Agent including, without limitation, any resulting liability to of the following circumstances:
(i) any Credit Party lack of validity or enforceability of this Agreement or any Lenderof the other Credit Documents;
(ii) the existence of any claim, setoff, defense or other right which a Borrower or any of its Restricted Subsidiaries may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, any Participant, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the respective Borrower or any Restricted Subsidiary of the respective Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default.
Appears in 3 contracts
Samples: Credit Agreement (Bway Parent Company, Inc.), Credit Agreement (Phoenix Container, Inc.), Credit Agreement (BWAY Holding CO)
Letter of Credit Participations. (a) Immediately upon the issuance by any Facing Agent an Issuing Lender of any Letter of CreditCredit under a Tranche, such Facing Agent Issuing Lender shall be deemed to have sold and transferred to (i) each Multicurrency Revolving Lender with respect to each Multicurrency Letter of Credit under such Tranche, and (ii) each Canadian Revolving Lender with respect to each Canadian Letter of Credit, in each case, other than such Facing Agent (each such Lender, Lender (in its capacity under this Section 2.10(e)3.04, a “LC Participant”), and each such LC Participant ) shall be deemed irrevocably and unconditionally to have purchased and received from such Facing AgentIssuing Lender, without recourse or warranty, an undivided interest and participation, to the extent of such Revolving LenderParticipant’s Multicurrency Revolver Pro Rata Share (with respect to Multicurrency Letters of Credit) and such U.S. Facility RL Percentage or Canadian Lender’s Canadian Revolver Pro Rata Share (with respect to Canadian Letters of Credit)Facility RL Percentage, as the case may be, in such Letter of Credit, each substitute Letter of Credit, each Drawing drawing or payment made thereunder and the obligations of the U.S. Borrowers under a Tranche, or the Canadian Borrowers, as the case may be, under this Agreement with respect thereto (although Letter of Credit fees shall be payable directly to Administrative Agent for the account of the LC Participant as provided in Section 2.10(g) and the LC Participants shall have no right to receive any portion of the facing fees)thereto, and any security therefor or guaranty pertaining thereto. Upon any change in the Multicurrency Revolving Commitments under a Tranche or U.S. Facility RL Percentages or Canadian Facility RL Percentages of the Multicurrency Revolving Lenders pursuant to Section 2.13, Section 2.14 or the Canadian Revolving Commitments of the Canadian Revolving LendersSection 13.04(b), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings under such Tranche relating to Letters of Creditthereto, there shall be an automatic adjustment to the participations pursuant to this Section 2.10(e) 3.04 to reflect the new Multicurrency Revolver Pro Rata Share U.S. Facility RL Percentages or Canadian Revolver Pro Rata ShareFacility RL Percentages of the assignor and assignee Lender under such Tranche, as the case may be, of the assignor and assignee Lender or of all Lenders with Multicurrency Revolving Commitments or Canadian Revolving Commitments, as the case may be. .
(b) In determining whether to pay under any Letter of CreditCredit under a Tranche, such Facing Agent no Issuing Lender shall have no any obligation relative to the LC Participants other Lenders under such Tranche other than to 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 with the requirements of such Letter of Credit. Any action taken or omitted to be taken by any Facing Agent an Issuing Lender under or in connection with any Letter of Credit issued by it if shall not create for such Issuing Lender any resulting liability to any Borrower, any other Loan Party, any Lender or any other Person unless such action is taken or omitted in the absence of to be taken with gross negligence or willful misconduct on the part of such Issuing Lender (as determined by a court of competent jurisdiction in a final and non-appealable judgment rendered decision).
(c) In the event that an Issuing Lender makes any payment under any Letter of Credit under a Tranche issued by a court of competent jurisdictionit and the U.S. Borrowers or the Canadian Borrowers, as applicable, shall not create have reimbursed such amount in full to such Issuing Lender pursuant to Section 3.05(a), such Issuing Lender shall promptly notify the Administrative Agent, which shall promptly notify each Participant under such Tranche of such failure, and each such Participant shall promptly and unconditionally pay to such Issuing Lender the amount of such Participant’s U.S. Facility RL Percentage or Canadian Facility RL Percentage, as the case may be, of such unreimbursed payment in U.S. Dollars (or, in the case of any unreimbursed payment made in a currency other than U.S. Dollars, the U.S. Dollar Equivalent of such unreimbursed payment, as determined by the Issuing Lender on the date on which such unreimbursed payment was made by such Issuing Lender) in immediately available funds. If the Administrative Agent so notifies, prior to 12:00 Noon (New York City time) on any Business Day, any Participant under a Tranche required to fund a payment under a Letter of Credit under such Tranche, such Participant shall make available to the respective Issuing Lender in U.S. Dollars (or, in the case of any unreimbursed payment made in a currency other than U.S. Dollars, the U.S. Dollar Equivalent thereof) such Participant’s U.S. Facility RL Percentage or Canadian Facility RL Percentage, as the case may be, of the amount of such payment on such Business Day in immediately available funds. If and to the extent such Participant shall not have so made its U.S. Facility RL Percentage or Canadian Facility RL Percentage, as the case may be, of the amount of such payment available to the respective Issuing Lender, such Participant agrees to pay to such Issuing Lender, forthwith on demand such amount, together with interest thereon, for each day from such Facing Agent date until the date such amount is paid to such Issuing Lender at the overnight Federal Funds Rate (or, in the case of any resulting liability unreimbursed payment made in a currency other than U.S. Dollars, at the respective Issuing Lender’s customary rate for interbank advances) for the first three days and at the interest rate applicable to U.S. Dollar Denominated Revolving Loans that are maintained as Base Rate Loans for each day thereafter. The failure of any Participant under a Tranche to make available to an Issuing Lender its U.S. Facility RL Percentage or Canadian Facility RL Percentage, as the case may be, of any payment under any Letter of Credit under such Tranche issued by such Issuing Lender shall not relieve any other Participant under such Tranche of its obligation hereunder to make available to such Issuing Lender its U.S. Facility RL Percentage or Canadian Facility RL Percentage, as the case may be, of any payment under any Letter of Credit under such Tranche on the date required, as specified above, but no Participant under such Tranche shall be responsible for the failure of any other Participant under such Tranche to make available to such Issuing Lender such other Participant’s U.S. Facility RL Percentage or Canadian Facility RL Percentage, as the case may be, of any such payment.
(d) Whenever an Issuing Lender receives a payment of a reimbursement obligation as to which it has received any payments from the Participants pursuant to clause (c) above, such Issuing Lender shall pay to each such Participant which has paid its applicable U.S. Facility RL Percentage or Canadian Facility RL Percentage thereof, in U.S. Dollars (or, in the case of any unreimbursed payment made in a currency other than U.S. Dollars, the U.S. Dollar Equivalent thereof) 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 in respect of such participation) 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 under a Tranche, each Issuing Lender shall furnish to such Participant copies of any standby Letter of Credit under such Tranche issued by it and such other documentation as may reasonably be requested by such Participant.
(f) The obligations of the Participants under a Tranche to make payments to each Issuing Lender with respect to Letters of Credit under such Tranche shall be irrevocable and not subject to any Credit Party qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any Lenderof the other Loan Documents;
(ii) the existence of any claim, setoff, defense or other right which Holdings or any of its Subsidiaries may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, any Participant, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between Holdings or any Subsidiary of Holdings and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or
(v) the occurrence of any Default or Event of Default.
Appears in 2 contracts
Samples: Abl Credit Agreement (Smurfit Stone Container Corp), Abl Credit Agreement (Smurfit Stone Container Corp)
Letter of Credit Participations. (a) Immediately upon the issuance by any Facing Agent the US Letter of Credit Issuer of any US Letter of Credit, such Facing Agent the US Letter of Credit Issuer shall be deemed to have sold and transferred to (i) each Multicurrency other Lender that has a US Revolving Lender with respect to each Multicurrency Letter of Credit and (ii) each Canadian Revolving Lender with respect to each Canadian Letter of Credit, in each case, other than such Facing Agent Commitment (each such other Lender, in its capacity under this Section 2.10(e)3.3, a an “LC US L/C Participant”), and each such LC US L/C Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Facing Agentthe US Letter of Credit Issuer, without recourse or warranty, an undivided interest and participationparticipation (each an “US L/C Participation”), to the extent of such US L/C Participant’s US Revolving Lender’s Multicurrency Revolver Pro Rata Share (with respect to Multicurrency Letters of Credit) and such Canadian Lender’s Canadian Revolver Pro Rata Share (with respect to Canadian Letters of Credit), as the case may be, Credit Commitment Percentage in such Letter of Credit, each substitute Letter letter of Creditcredit, each Drawing drawing made thereunder and the obligations of the Borrowers Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto (although Letter of Credit fees shall Fees will be payable paid directly to the Administrative Agent for the ratable account of the LC Participant US L/C Participants as provided in Section 2.10(g4.1(b) and the LC US L/C Participants shall have no right to receive any portion of any Fronting Fees).
(b) Immediately upon the facing feesissuance by the Canadian Letter of Credit Issuer of any Canadian Letter of Credit on the account of the Canadian Borrower, the Canadian Letter of Credit Issuer shall be deemed to have sold and transferred to each other Canadian Lender that has a Canadian Revolving Credit Commitment, to the extent the Canadian Letter of Credit Obligations are owed by the Canadian Borrower, (each such other Lender, in its capacity under this Section 3.3, an “Cdn L/C Participant” and collectively the “Cdn L/C Participants”), and each such Cdn L/C Participant shall be deemed irrevocably and unconditionally to have purchased and received from the Canadian Letter of Credit Issuer, without recourse or warranty, an undivided interest and participation (each a “Cdn L/C Participation”), to the extent of such Cdn L/C Participant’s Canadian Revolving Credit Commitment Percentage in such Canadian Letter of Credit, each substitute letter of credit, each drawing made thereunder and the obligations of the Borrower and the Canadian Borrower, as the case may be, under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto. Upon any change in .
(c) Letter of Credit Fees will be paid directly to the Multicurrency Revolving Commitments Canadian Administrative Agent for the ratable account of the Multicurrency Revolving Lenders or the Canadian Revolving Commitments Cdn L/C Participants for Letters of Credit issued on behalf of the Canadian Revolving Lenders, it is hereby agreed that, with respect Borrower as provided in Section 4.1(d). The Cdn L/C Participants shall have no right to all outstanding Letters receive any portion of Credit and Unpaid Drawings relating to Letters of Credit, there shall be an automatic adjustment pursuant to this Section 2.10(eany Fronting Fees.
(d) to reflect the new Multicurrency Revolver Pro Rata Share or Canadian Revolver Pro Rata Share, as the case may be, of the assignor and assignee Lender or of all Lenders with Multicurrency Revolving Commitments or Canadian Revolving Commitments, as the case may be. In determining whether to pay under any Letter of Credit, such Facing Agent the relevant Letter of Credit Issuer shall have no obligation relative to the LC L/C Participants other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by any Facing Agent the relevant Letter of Credit Issuer under or in connection with any Letter of Credit issued by it it, if taken or omitted in the absence of gross negligence or willful misconduct as determined by a final and non-appealable judgment rendered by a court of competent jurisdictionmisconduct, shall not create for such Facing Agent the Letter of Credit Issuer any resulting liability liability.
(e) In the event that the Letter of Credit Issuer makes any payment under any Letter of Credit issued by it and the Borrower or the Canadian Borrower, as applicable, shall not have repaid such amount in full to the respective Letter of Credit Issuer pursuant to Section 3.4(a), the Letter of Credit Issuer shall promptly notify the Administrative Agent or the Canadian Administrative Agent, as applicable, and each applicable L/C Participant of such failure, and each such L/C Participant shall promptly and unconditionally pay to the Administrative Agent or the Canadian Administrative Agent, as applicable,, for the account of the Letter of Credit Issuer, the amount of such L/C Participant’s Revolving Credit Commitment Percentage of such unreimbursed payment in Dollars and in immediately available funds; provided, however, that no L/C Participant shall be obligated to pay to the Administrative Agent or the Canadian Administrative Agent, as applicable, for the account of the respective Letter of Credit Issuer its Revolving Credit Commitment Percentage of such unreimbursed amount arising from any wrongful payment made by the Letter of Credit Party Issuer under a Letter of Credit as a result of acts or any Lender.omissions constituting willful misconduct or gross negligence on the part of the Letter of
Appears in 2 contracts
Samples: Credit Agreement (Sealy Corp), Credit Agreement (Sealy Corp)
Letter of Credit Participations. (a) Immediately upon the issuance by any Facing Agent Issuing Lender of any Letter of Credit, such Facing Agent Issuing Lender shall be deemed to have sold and transferred to (i) in the case of a Dollar Facility Letter of Credit, each Multicurrency Revolving Dollar Facility RL Lender, (ii) in the case of a Euro Facility Letter of Credit, each Euro Facility RL Lender and (iii) in the case of a Canadian Facility Letter of Credit, each Canadian Facility RL Lender (each such Lender with respect to each Multicurrency Letter of Credit and (ii) each Canadian Revolving Lender with respect to each Canadian any Letter of Credit, in each case, other than such Facing Agent (each such Lender, in its capacity under this Section 2.10(e)2.03, a “LC L/C Participant”), and each such LC L/C Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Facing AgentIssuing Lender, without recourse or warranty, an undivided interest and participation, in a percentage equal to the extent of such Revolving Lender’s Multicurrency Revolver Pro Rata Share (with respect to Multicurrency Letters of Creditx) and such Canadian Lender’s Canadian Revolver Pro Rata Share (with respect to Canadian Letters of Credit), as in the case may be, in such of a Dollar Facility Letter of Credit, each substitute such L/C Participant’s Dollar Facility RL Percentage, (y) in the case of a Euro Facility Letter of Credit, such L/C Participant’s Euro Facility RL Percentage or (z) in the case of a Canadian Facility Letter of Credit, such L/C Participant’s Canadian Facility RL Percentage, each Drawing made thereunder and the obligations of the Borrowers respective Borrower under this Agreement with respect thereto (although Letter of Credit fees Fees shall be payable directly to the Administrative Agent for the account of the LC Participant Dollar Facility RL Lenders, Euro Facility RL Lenders or Canadian Facility RL Lenders, as the case may be, as provided in Section 2.10(g3.01(b) and the LC L/C Participants shall have no right to receive any portion of the facing fees), any Facing Fees with respect to any such Letters of Credit) and any security therefor or guaranty pertaining thereto. Upon any change in (x) the Multicurrency Dollar Facility Revolving Loan Commitments and, as a result thereof the Dollar Facility RL Percentages, of the Multicurrency Revolving Dollar Facility RL Lenders pursuant to Sections 1.14 or the Canadian Revolving Commitments of the Canadian Revolving Lenders13.04, it is hereby agreed that, with respect to all outstanding Dollar Facility Letters of Credit and Unpaid Drawings relating to Letters of Creditthereto, there shall be an automatic adjustment to the participations pursuant to this Section 2.10(e) 2.03 to reflect the new Multicurrency Revolver Pro Rata Share Dollar Facility RL Percentages of the Dollar Facility RL Lenders, (y) the Euro Facility Revolving Loan Commitments and, as a result thereof the Euro Facility RL Percentages, of the Euro Facility RL Lenders pursuant to Sections 1.14 or 13.04, it is hereby agreed that, with respect to all outstanding Euro Facility Letters of Credit and Unpaid Drawings relating thereto, there shall be an automatic adjustment to the participations pursuant to this Section 2.03 to reflect the new Euro Facility RL Percentages of the Euro Facility RL Lenders and (z) the Canadian Facility Revolving Loan Commitments and, as a result thereof the Canadian Facility RL Percentages, of the Canadian Facility RL Lenders pursuant to Sections 1.14 or 13.04, it is hereby agreed that with respect to all outstanding Canadian Facility Letters of Credit and Unpaid Drawings relating thereto, there shall be an automatic adjustment to the participations pursuant to this Section 2.03 to reflect the new Canadian Facility RL Percentages of the Canadian Facility RL Lenders. With respect to each Letter of Credit from time to time outstanding, the percentage participations therein of the various Dollar Facility RL Lenders (in the case of a Dollar Facility Letter of Credit), the Euro Facility RL Lenders (in the case of a Euro Facility Letter of Credit) or Canadian Revolver Pro Rata ShareFacility RL Lenders (in the case of a Canadian Facility Letter of Credit) calculated as provided above in this Section 2.03(a) are herein called the “L/C Participation Percentages” of the various Dollar Facility RL Lenders, Euro Facility RL Lenders or Canadian Facility RL Lenders, as the case may be, in such Letters of Credit. All calculations of the assignor and assignee Lender or of all Lenders with Multicurrency Revolving Commitments or Canadian Revolving CommitmentsL/C Participation Percentages shall be made from time to time by the Administrative Agent, as the case may be. which calculations shall be conclusive absent manifest error.
(b) In determining whether to pay under any Letter of Credit, such Facing Agent the respective Issuing Lender shall have no obligation relative to the LC Participants other Lenders other than to 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 with the requirements of such Letter of Credit. Any action taken or omitted to be taken by any Facing Agent Issuing Lender under or in connection with any Letter of Credit issued by it if taken or omitted in the absence of gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final and non-appealable judgment rendered by a court of competent jurisdictiondecision), shall not create for such Facing Agent Issuing Lender any resulting liability to any Credit Account Party or any Lender.
(c) In the event that any Issuing Lender makes any payment or disbursement under any Letter of Credit issued by it and the respective Account Party shall not have reimbursed such amount in full to such Issuing Lender pursuant to Section 2.04(a), such Issuing Lender shall promptly notify the Administrative Agent, which shall promptly notify each L/C Participant therein (i.e., (x) the Dollar Facility RL Lenders in the case of a Dollar Facility Letter of Credit, (y) the Euro Facility RL Lenders in the case of a Euro Facility Letter of Credit or (z) the Canadian Facility RL Lenders in the case of a Canadian Facility Letter of Credit) of such failure, and each L/C Participant therein shall promptly and unconditionally pay to the Administrative Agent for the account of such Issuing Lender the amount of such L/C Participant’s L/C Participation Percentage (as relates to the respective Letter of Credit) of the respective Unpaid Drawing (with the amount thereof and the currency in which same is owing to be calculated in accordance with the provisions of Section 2.04(a)) in Dollars (or, to the extent the respective Unpaid Drawing is, in accordance with Section 2.04(a), to be reimbursed by the respective Account Party in Euros, in Euros or, to the extent the respective Unpaid Drawing is, in accordance with Section 2.04(a), to be reimbursed by the respective Account Party in Canadian Dollars, in Canadian Dollars) and in same day funds. If the Administrative Agent so notifies, prior to 11:00 A.M. (New York time) on any Business Day, any L/C Participant required to fund an Unpaid Drawing under a Letter of Credit, such L/C Participant shall make available to the Administrative Agent at the Payment Office for the account of the respective Issuing Lender, in Dollars (or in Euros to the extent the respective Unpaid Drawing is required to be paid by the respective Account Party in Euros pursuant to the provisions of Section 2.04(a) or in Canadian Dollars to the extent the respective Unpaid Drawing is required to be paid by the respective Account Party in Canadian Dollars pursuant to the provisions of Section 2.04(a)), such L/C Participant’s L/C Participation Percentage (as relates to the respective Letter of Credit) of the amount of such payment on such Business Day in same day funds. If and to the extent that, for any reason, such L/C Participant shall not have made its L/C Participation Percentage of the amount of such payment available to the Administrative Agent for the account of the respective Issuing Lender, such L/C Participant agrees to pay to the Administrative Agent for the account of such Issuing Lender, forthwith on demand such amount, together with interest thereon, for each day from the date the respective Unpaid Drawing occurred until the date such amount is paid to the Administrative Agent for the account of such Issuing Lender at the overnight Federal Funds Rate (or, in the case of amounts owed in Euros, at the Overnight Euro Rate or, in the case of amounts owed in Canadian Dollars, at the cost to the Administrative Agent of acquiring overnight funds in Canadian Dollars), provided that if any L/C Participant does not make available to the Administrative Agent any amounts required to be made available by it as described above within 2 Business Days after the respective L/C Participant has been notified by the Administrative Agent or the respective Issuing Lender to make such amounts available, then the respective L/C Participant shall pay interest on the amounts demanded of it at the same rates payable from time to time by the respective Account Party on the respective Unpaid Drawings pursuant to Section 2.04(a). The failure of any L/C Participant to make available to the Administrative Agent for the account of the respective Issuing Lender its relevant L/C Participation Percentage of any payment under any Letter of Credit issued by it shall not relieve any other L/C Participant in the respective Letter of Credit of its obligation hereunder to make available to the Administrative Agent for the account of such Issuing Lender its relevant L/C Participation Percentage of any such Letter of Credit on the date required, as specified above, but no L/C Participant shall be responsible for the failure of any other L/C Participant to make available to the Administrative Agent for the account of such Issuing Lender such other L/C Participant’s relevant L/C Participation Percentage of any such payment.
(d) Whenever any Issuing Lender receives a payment of a reimbursement obligation as to which the Administrative Agent has received for the account of such Issuing Lender any payments from the L/C Participants pursuant to clause (c) above, such Issuing Lender shall pay to the Administrative Agent and the Administrative Agent shall promptly pay each L/C Participant which has paid its relevant L/C Participation Percentage thereof, in Dollars (or in Euros in the case of payments to be made in Euros pursuant to Section 2.04(a) or in Canadian Dollars in the case of payments to be made in Canadian Dollars pursuant to Section 2.04(a)) and in same day funds, an amount equal to such L/C Participant’s share (based on the proportionate aggregate amount funded by such L/C Participant to the aggregate amount funded by all L/C Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations.
(e) Each Issuing Lender shall, promptly after the issuance of, or amendment or modification to, a Standby Letter of Credit, give the Administrative Agent and the respective Account Party written notice of such issuance, amendment or modification, as the case may be, and such notice shall be accompanied by a copy of such Standby Letter of Credit, such amendment or such modification, as the case may be. Promptly upon receipt of such notice, the Administrative Agent shall notify each L/C Participant, in writing, of such issuance, amendment or modification and if any L/C Participant shall so request, the Administrative Agent shall furnish said L/C Participant with a copy of such Standby Letter of Credit, such amendment or such modification, as the case may be.
(f) Each Issuing Lender shall deliver to the Administrative Agent, promptly on the first Business Day of each week, by facsimile transmission, the aggregate daily Stated Amount available to be drawn under the outstanding Trade Letters of Credit issued by such Issuing Lender for the previous week.
(g) The obligations of the L/C Participants to make payments to the Administrative Agent for the account of the respective 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 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 lack of validity or enforceability of this Agreement or any of the Credit Documents;
(ii) the existence of any claim, setoff, defense or other right which any Credit Party or any of its Subsidiaries may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), any Agent, any Lender, any Issuing Lender, any L/C Participant, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between any Credit Party or any of its Subsidiaries and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default. Any action taken or omitted to be taken by any Issuing Lender under or in connection with any Letter of Credit shall not create for such Issuing Lender any resulting liability to the L/C Participants or any other Person unless such action is taken or omitted to be taken with gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final and non-appealable decision).
Appears in 1 contract
Samples: Credit Agreement (Owens Corning)
Letter of Credit Participations. (a) Immediately upon the issuance by any Facing Agent the US Letter of Credit Issuer of any US Letter of Credit, such Facing Agent the US Letter of Credit Issuer shall be deemed to have sold and transferred to (i) each Multicurrency other Lender that has a US Revolving Lender with respect to each Multicurrency Letter of Credit and (ii) each Canadian Revolving Lender with respect to each Canadian Letter of Credit, in each case, other than such Facing Agent Commitment (each such other Lender, in its capacity under this Section 2.10(e)3.3, a an “LC US L/C Participant”), and each such LC US L/C Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Facing Agentthe US Letter of Credit Issuer, without recourse or warranty, an undivided interest and participationparticipation (each an “US L/C Participation”), to the extent of such US L/C Participant’s US Revolving Lender’s Multicurrency Revolver Pro Rata Share (with respect to Multicurrency Letters of Credit) and such Canadian Lender’s Canadian Revolver Pro Rata Share (with respect to Canadian Letters of Credit), as the case may be, Credit Commitment Percentage in such Letter of Credit, each substitute Letter letter of Creditcredit, each Drawing drawing made thereunder and the obligations of the Borrowers Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto (although Letter of Credit fees shall Fees will be payable paid directly to the Administrative Agent for the ratable account of the LC Participant US L/C Participants as provided in Section 2.10(g4.1(b) and the LC US L/C Participants shall have no right to receive any portion of any Fronting Fees).
(b) Immediately upon the facing feesissuance by the Canadian Letter of Credit Issuer of any Canadian Letter of Credit on the account of the Canadian Borrower, the Canadian Letter of Credit Issuer shall be deemed to have sold and transferred to each other Canadian Lender that has a Canadian Revolving Credit Commitment, to the extent the Canadian Letter of Credit Obligations are owed by the Canadian Borrower, (each such other Lender, in its capacity under this Section 3.3, an “Cdn L/C Participant” and collectively the “Cdn L/C Participants”), and each such Cdn L/C Participant shall be deemed irrevocably and unconditionally to have purchased and received from the Canadian Letter of Credit Issuer, without recourse or warranty, an undivided interest and participation (each a “Cdn L/C Participation”), to the extent of such Cdn L/C Participant’s Canadian Revolving Credit Commitment Percentage in such Canadian Letter of Credit, each substitute letter of credit, each drawing made thereunder and the obligations of the Borrower and the Canadian Borrower, as the case may be, under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto. Upon any change in .
(c) Letter of Credit Fees will be paid directly to the Multicurrency Revolving Commitments Canadian Administrative Agent for the ratable account of the Multicurrency Revolving Lenders or the Canadian Revolving Commitments Cdn L/C Participants for Letters of Credit issued on behalf of the Canadian Revolving Lenders, it is hereby agreed that, with respect Borrower as provided in Section 4.1(d). The Cdn L/C Participants shall have no right to all outstanding Letters receive any portion of Credit and Unpaid Drawings relating to Letters of Credit, there shall be an automatic adjustment pursuant to this Section 2.10(eany Fronting Fees.
(d) to reflect the new Multicurrency Revolver Pro Rata Share or Canadian Revolver Pro Rata Share, as the case may be, of the assignor and assignee Lender or of all Lenders with Multicurrency Revolving Commitments or Canadian Revolving Commitments, as the case may be. In determining whether to pay under any Letter of Credit, such Facing Agent the relevant Letter of Credit Issuer shall have no obligation relative to the LC L/C Participants other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by any Facing Agent the relevant Letter of Credit Issuer under or in connection with any Letter of Credit issued by it it, if taken or omitted in the absence of gross negligence or willful misconduct as determined by a final and non-appealable judgment rendered by a court of competent jurisdictionmisconduct, shall not create for such Facing Agent the Letter of Credit Issuer any resulting liability liability.
(e) In the event that the Letter of Credit Issuer makes any payment under any Letter of Credit issued by it and the Borrower or the Canadian Borrower, as applicable, shall not have repaid such amount in full to the respective Letter of Credit Issuer pursuant to Section 3.4(a), the Letter of Credit Issuer shall promptly notify the Administrative Agent or the Canadian Administrative Agent, as applicable, and each applicable L/C Participant of such failure, and each such L/C Participant shall promptly and unconditionally pay to the Administrative Agent or the Canadian Administrative Agent, as applicable,, for the account of the Letter of Credit Issuer, the amount of such L/C Participant’s Revolving Credit Commitment Percentage of such unreimbursed payment in Dollars and in immediately available funds; provided, however, that no L/C Participant shall be obligated to pay to the Administrative Agent or the Canadian Administrative Agent, as applicable, for the account of the respective Letter of Credit Issuer its Revolving Credit Commitment Percentage of such unreimbursed amount arising from any wrongful payment made by the Letter of Credit Party Issuer under a Letter of Credit as a result of acts or omissions constituting willful misconduct or gross negligence on the part of the Letter of Credit Issuer. If the Letter of Credit Issuer so notifies, prior to 11:00 a.m. (New York time) on any Business Day, any L/C Participant required to fund a payment under a Letter of Credit, such L/C Participant shall make available to the Administrative Agent or the Canadian Administrative Agent, as applicable, for the account of the Letter of Credit Issuer such L/C Participant’s Revolving Credit Commitment Percentage of the amount of such payment on such Business Day in immediately available funds. If and to the extent such L/C Participant shall not have so made its Revolving Credit Commitment Percentage of the amount of such payment available to the Administrative Agent or the Canadian Administrative Agent, as applicable, for the account of the Letter of Credit Issuer, such L/C Participant agrees to pay to the Administrative Agent or the Canadian Administrative Agent, as applicable, for the account of the Letter of Credit 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 Administrative Agent or the Canadian Administrative Agent, as applicable, for the account of the Letter of Credit Issuer at the Federal Funds Effective Rate. The failure of any L/C Participant to make available to the Administrative Agent or the Canadian Administrative Agent, as applicable, for the account of the Letter of Credit Issuer its Revolving Credit Commitment Percentage of any payment under any Letter of Credit shall not relieve any other L/C Participant of its obligation hereunder to make available to the Administrative Agent or the Canadian Administrative Agent, as applicable, for the account of the Letter of Credit Issuer its Revolving Credit Commitment Percentage of any payment under such Letter of Credit on the date required, as specified above, but no L/C Participant shall be responsible for the failure of any other L/C Participant to make available to the Administrative Agent or the Canadian Administrative Agent, as applicable, such other L/C Participant’s Revolving Credit Commitment Percentage of any such payment.
(f) Whenever the Letter of Credit Issuer receives a payment in respect of an unpaid reimbursement obligation as to which the Administrative Agent has received for the account of the Letter of Credit Issuer any payments from the L/C Participants pursuant to paragraph (c) above, the Letter of Credit Issuer shall pay to the Administrative Agent and the Administrative Agent shall promptly pay to each L/C Participant that has paid its Revolving Credit Commitment Percentage of such reimbursement obligation, in Dollars and in immediately available funds, an amount equal to such L/C Participant’s share (based upon the proportionate aggregate amount originally funded by such L/C Participant to the aggregate amount funded by all L/C Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective L/C Participations.
(g) The obligations of the L/C Participants to make payments to the Administrative Agent or the Canadian Administrative Agent for the account of a 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 Lenderother qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including under any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Credit Documents;
(ii) the existence of any claim, set-off, defense or other right that the Borrower may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, the Canadian Administrative Agent the Letter of Credit Issuer, any Lender or other Person, whether in connection with this Agreement, any Letter of 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);
(iii) any draft, certificate or any other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default; provided, however, that no L/C Participant shall be obligated to pay to the Administrative Agent or the Canadian Administrative Agent for the account of the Letter of Credit Issuer its US Revolving Credit Commitment Percentage or Canadian Revolving Credit Commitment Percentage of any unreimbursed amount arising from any wrongful payment made by 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 the Letter of Credit Issuer.
Appears in 1 contract
Samples: Credit Agreement (Sealy Corp)
Letter of Credit Participations. (a) Immediately upon the issuance by any Facing Agent the US Letter of Credit Issuer of any US Letter of Credit, such Facing Agent and, with respect to US Letters of Credit governed by Section 3.1(d), upon the Closing Date, the US Letter of Credit Issuer shall be deemed to have sold and transferred to (i) each Multicurrency other Lender that has a US Revolving Lender with respect to each Multicurrency Letter of Credit and (ii) each Canadian Revolving Lender with respect to each Canadian Letter of Credit, in each case, other than such Facing Agent Commitment (each such other Lender, in its capacity under this Section 2.10(e)3.3, a “LC US L/C Participant”), and each such LC US L/C Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Facing Agentthe US Letter of Credit Issuer, without recourse or warranty, an undivided interest and participationparticipation (each a “US L/C Participation”), to the extent of such US L/C Participant’s US Revolving Lender’s Multicurrency Revolver Pro Rata Share (with respect to Multicurrency Letters of Credit) and such Canadian Lender’s Canadian Revolver Pro Rata Share (with respect to Canadian Letters of Credit), as the case may be, Credit Commitment Percentage in such US Letter of Credit, each substitute Letter letter of Creditcredit, each Drawing drawing made thereunder and the obligations of the Borrowers Borrower under this Agreement with respect thereto thereto, and any security therefor or guaranty pertaining thereto.
(although b) Immediately upon the issuance by the Canadian Letter of Credit fees Issuer of any Canadian Letter of Credit, the Canadian Letter of Credit Issuer shall be payable deemed to have sold and transferred to each other Canadian Lender (each such other Lender, in its capacity under this Section 3.3, a “Cdn L/C Participant”), and each such Cdn L/C Participant shall be deemed irrevocably and unconditionally to have purchased and received from the Canadian Letter of Credit Issuer, without recourse or warranty, an undivided interest and participation (each a “Cdn L/C Participation”), to the extent of such Cdn L/C Participant’s Canadian Revolving Credit Commitment Percentage in such Canadian Letter of Credit, each substitute letter of credit, each drawing made thereunder and the obligations of the Canadian Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto.
(c) US Letter of Credit Fees will be paid directly to the Administrative Agent for the ratable account of the LC Participant US L/C Participants as provided in Section 2.10(g) 4.1(b), and Canadian Letter of Credit Fees will be paid directly to the LC Canadian Administrative Agent for the ratable account of the Cdn L/C Participants as provided in Section 4.1(d). The US L/C Participants shall have no right to receive any portion of the facing fees)any US L/C Fronting Fees, and the Cdn L/C Participants shall have no right to receive any security therefor or guaranty pertaining thereto. Upon portion of any change in the Multicurrency Revolving Commitments of the Multicurrency Revolving Lenders or the Canadian Revolving Commitments of the Canadian Revolving Lenders, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings relating to Letters of Credit, there shall be an automatic adjustment pursuant to this Section 2.10(eL/C Fronting Fees.
(d) to reflect the new Multicurrency Revolver Pro Rata Share or Canadian Revolver Pro Rata Share, as the case may be, of the assignor and assignee Lender or of all Lenders with Multicurrency Revolving Commitments or Canadian Revolving Commitments, as the case may be. In determining whether to pay under any Letter of Credit, such Facing Agent the relevant Letter of Credit Issuer shall have no obligation relative to the LC applicable L/C Participants other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by any Facing Agent the relevant Letter of Credit Issuer under or in connection with any Letter of Credit issued by it it, if taken or omitted in the absence of gross negligence or willful misconduct as determined by a final and non-appealable judgment rendered by a court of competent jurisdictionmisconduct, shall not create for such Facing Agent Letter of Credit Issuer any resulting liability liability.
(e) In the event that any Letter of Credit Issuer makes any payment under any Letter of Credit issued by it and the Borrower or the Canadian Borrower, as applicable, shall not have repaid such amount in full to the relevant Letter of Credit Issuer pursuant to Section 3.4(a), such Letter of Credit Issuer shall promptly notify the Administrative Agent or the Canadian Administrative Agent, as applicable, and each applicable L/C Participant of such failure, and each such L/C Participant shall promptly and unconditionally pay to the Administrative Agent or the Canadian Administrative Agent, as applicable, for the account of the relevant Letter of Credit Issuer, the amount of such L/C Participant’s Revolving Credit Commitment Percentage of such unreimbursed payment in Dollars or Canadian Dollars, as applicable, and in immediately available funds; provided, however, that no L/C Participant shall be obligated to pay to the Administrative Agent or the Canadian Administrative Agent, as applicable, for the account of the relevant Letter of Credit Issuer its Revolving Credit Commitment Percentage of such unreimbursed amount arising from any wrongful payment made by such relevant Letter of Credit Party 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 the relevant Letter of Credit Issuer so notifies, prior to 11:00 a.m. (New York City time) on any Business Day, any L/C Participant required to fund a payment under a Letter of Credit, such L/C Participant shall make available to the Administrative Agent or the Canadian Administrative Agent, as applicable, for the account of such Letter of Credit Issuer such L/C Participant’s Revolving Credit Commitment Percentage of the amount of such payment on such Business Day in immediately available funds. If and to the extent such L/C Participant shall not have so made its Revolving Credit Commitment Percentage of the amount of such payment available to the Administrative Agent or the Canadian Administrative Agent, as applicable, for the account of the relevant Letter of Credit Issuer, such L/C Participant agrees to pay to the Administrative Agent or the Canadian Administrative Agent, as applicable, for the account of such Letter of Credit 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 Administrative Agent or the Canadian Administrative Agent, as applicable, for the account of such Letter of Credit Issuer at the Federal Funds Effective Rate, in the case of any amount for the account of the US Letter of Credit Issuer, or the rate reasonably determined by the Canadian Letter of Credit Issuer to be the cost to it of funding the payment under the applicable Letter of Credit issued by it, in the case of any amount for the account of the Canadian Letter of Credit Issuer. The failure of any L/C Participant to make available to the Administrative Agent or the Canadian Administrative Agent, as applicable, for the account of the relevant Letter of Credit Issuer its Revolving Credit Commitment Percentage of any payment under any Letter of Credit shall not relieve any other L/C Participant of its obligation hereunder to make available to the Administrative Agent or the Canadian Administrative Agent, as applicable, for the account of such Letter of Credit Issuer its Revolving Credit Commitment Percentage of any payment under such Letter of Credit on the date required, as specified above, but no L/C Participant shall be responsible for the failure of any other L/C Participant to make available to the Administrative Agent or the Canadian Administrative Agent, as applicable, such other L/C Participant’s Revolving Credit Commitment Percentage of any such payment.
(f) Whenever any Letter of Credit Issuer receives a payment in respect of an unpaid reimbursement obligation as to which the Administrative Agent or the Canadian Administrative Agent, as applicable, has received for the account of such Letter of Credit Issuer any payments from the L/C Participants pursuant to paragraph (e) above, such Letter of Credit Issuer shall pay to the Administrative Agent or the Canadian Administrative Agent, as applicable, and the Administrative Agent or the Canadian Administrative Agent, as applicable, shall promptly pay to each L/C Participant that has paid its Revolving Credit Commitment Percentage of such reimbursement obligation, in Dollars or Canadian Dollars, as applicable, and in immediately available funds, an amount equal to such L/C Participant’s share (based upon the proportionate aggregate amount originally funded by such L/C Participant to the aggregate amount funded by all applicable L/C Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective L/C Participations.
(g) The obligations of the L/C Participants to make payments to the Administrative Agent or the Canadian Administrative Agent for the account of a 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 Lenderother qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including under any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Credit Documents;
(ii) the existence of any claim, set-off, defense or other right that the Borrower may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, the Canadian Administrative Agent, any Letter of Credit Issuer, any Lender or other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the Borrower or the Canadian Borrower, as applicable, and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default; provided, however, that no L/C Participant shall be obligated to pay to the Administrative Agent or the Canadian Administrative Agent for the account of a Letter of Credit Issuer its Revolving Credit Commitment Percentage of any unreimbursed amount arising from 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.
Appears in 1 contract
Samples: Credit Agreement (Visant Corp)
Letter of Credit Participations. (a) Immediately upon the issuance by any Facing Agent the US Letter of Credit Issuer of any US Letter of Credit, such Facing Agent the US Letter of Credit Issuer shall be deemed to have sold and transferred to (i) each Multicurrency other Lender that has a US Revolving Lender with respect to each Multicurrency Letter of Credit and (ii) each Canadian Revolving Lender with respect to each Canadian Letter of Credit, in each case, other than such Facing Agent Commitment (each such other Lender, in its capacity under this Section 2.10(e)3.3, a an “LC US L/C Participant”), and each such LC US L/C Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Facing Agentthe US Letter of Credit Issuer, without recourse or warranty, an undivided interest and participationparticipation (each an “US L/C Participation”), to the extent of such US L/C Participant’s US Revolving Lender’s Multicurrency Revolver Pro Rata Share (with respect to Multicurrency Letters of Credit) and such Canadian Lender’s Canadian Revolver Pro Rata Share (with respect to Canadian Letters of Credit), as the case may be, Credit Commitment Percentage in such Letter of Credit, each substitute Letter letter of Creditcredit, each Drawing drawing made thereunder and the obligations of the Borrowers Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto (although Letter of Credit fees shall Fees will be payable paid directly to the Administrative Agent for the ratable account of the LC Participant US L/C Participants as provided in Section 2.10(g4.1(b) and the LC US L/C Participants shall have no right to receive any portion of any Fronting Fees).
(b) Immediately upon the facing feesissuance by the Canadian Letter of Credit Issuer of any Canadian Letter of Credit on the account of the Canadian Borrower, the Canadian Letter of Credit Issuer shall be deemed to have sold and transferred to each other Canadian Lender that has a Canadian Revolving Credit Commitment, to the extent the Canadian Letter of Credit Obligations are owed by the Canadian Borrower, (each such other Lender, in its capacity under this Section 3.3, an “Cdn L/C Participant” and collectively the “Cdn L/C Participants”), and each such Cdn L/C Participant shall be deemed irrevocably and unconditionally to have purchased and received from the Canadian Letter of Credit Issuer, without recourse or warranty, an undivided interest and participation (each a “Cdn L/C Participation”), to the extent of such Cdn L/C Participant’s Canadian Revolving Credit Commitment Percentage in such Canadian Letter of Credit, each substitute letter of credit, each drawing made thereunder and the obligations of the Borrower and the Canadian Borrower, as the case may be, under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto. Upon any change in the Multicurrency Revolving Commitments of the Multicurrency Revolving Lenders or the Canadian Revolving Commitments of the Canadian Revolving Lenders, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings relating to Letters of Credit, there shall be an automatic adjustment pursuant to this Section 2.10(e) to reflect the new Multicurrency Revolver Pro Rata Share or Canadian Revolver Pro Rata Share, as the case may be, of the assignor and assignee Lender or of all Lenders with Multicurrency Revolving Commitments or Canadian Revolving Commitments, as the case may be. In determining whether to pay under any Letter of Credit, such Facing Agent shall have no obligation relative to the LC Participants other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by any Facing Agent under or in connection with any Letter of Credit issued by it if taken or omitted in the absence of gross negligence or willful misconduct as determined by a final and non-appealable judgment rendered by a court of competent jurisdiction, shall not create for such Facing Agent any resulting liability to any Credit Party or any Lender.
Appears in 1 contract
Samples: Credit Agreement (Sealy Corp)
Letter of Credit Participations. (a) Immediately upon the issuance by any Facing Agent the US Letter of Credit Issuer of any US Letter of Credit, such Facing Agent the US Letter of Credit Issuer shall be deemed to have sold and transferred to (i) each Multicurrency other Lender that has a US Revolving Lender with respect to each Multicurrency Letter of Credit and (ii) each Canadian Revolving Lender with respect to each Canadian Letter of Credit, in each case, other than such Facing Agent Commitment (each such other Lender, in its capacity under this Section 2.10(e)3.3, a “LC US L/C Participant”), and each such LC US L/C Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Facing Agentthe US Letter of Credit Issuer, without recourse or warranty, an undivided interest and participationparticipation (each a “US L/C Participation”), to the extent of such US L/C Participant’s US Revolving Lender’s Multicurrency Revolver Pro Rata Share (with respect to Multicurrency Letters of Credit) and such Canadian Lender’s Canadian Revolver Pro Rata Share (with respect to Canadian Letters of Credit), as the case may be, Credit Commitment Percentage in such US Letter of Credit, each substitute Letter letter of Creditcredit, each Drawing drawing made thereunder and the obligations of the Borrowers US Borrower under this Agreement with respect thereto thereto, and any security therefor or guaranty pertaining thereto.
(although b) Immediately upon the issuance by the Canadian Letter of Credit fees Issuer of any Canadian Letter of Credit, the Canadian Letter of Credit Issuer shall be payable deemed to have sold and transferred to each other Canadian Lender (each such other Lender, in its capacity under this Section 3.3, a “Cdn L/C Participant”), and each such Cdn L/C Participant shall be deemed irrevocably and unconditionally to have purchased and received from the Canadian Letter of Credit Issuer, without recourse or warranty, an undivided interest and participation (each a “Cdn L/C Participation”), to the extent of such Cdn L/C Participant’s Canadian Revolving Credit Commitment Percentage in such Canadian Letter of Credit, each substitute letter of credit, each drawing made thereunder and the obligations of the Canadian Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto.
(c) US Letter of Credit Fees will be paid directly to the Administrative Agent for the ratable account of the LC Participant US L/C Participants as provided in Section 2.10(g) 4.1(b), and Canadian Letter of Credit Fees will be paid directly to the LC Canadian Administrative Agent for the ratable account of the Cdn L/C Participants as provided in Section 4.1(d). The US L/C Participants shall have no right to receive any portion of the facing fees)any US L/C Fronting Fees, and the Cdn L/C Participants shall have no right to receive any security therefor or guaranty pertaining thereto. Upon portion of any change in the Multicurrency Revolving Commitments of the Multicurrency Revolving Lenders or the Canadian Revolving Commitments of the Canadian Revolving Lenders, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings relating to Letters of Credit, there shall be an automatic adjustment pursuant to this Section 2.10(eL/C Fronting Fees.
(d) to reflect the new Multicurrency Revolver Pro Rata Share or Canadian Revolver Pro Rata Share, as the case may be, of the assignor and assignee Lender or of all Lenders with Multicurrency Revolving Commitments or Canadian Revolving Commitments, as the case may be. In determining whether to pay under any Letter of Credit, such Facing Agent the relevant Letter of Credit Issuer shall have no obligation relative to the LC applicable L/C Participants other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by any Facing Agent the relevant Letter of Credit Issuer under or in connection with any Letter of Credit issued by it it, if taken or omitted in the absence of gross negligence or willful misconduct as determined by a final and non-appealable judgment rendered by a court of competent jurisdictionmisconduct, shall not create for such Facing Agent Letter of Credit Issuer any resulting liability liability.
(e) In the event that any Letter of Credit Issuer makes any payment under any Letter of Credit issued by it and the US Borrower or the Canadian Borrower, as applicable, shall not have repaid such amount in full to the relevant Letter of Credit Issuer pursuant to Section 3.4(a), such Letter of Credit Issuer shall promptly notify the Administrative Agent or the Canadian Administrative Agent, as applicable, and each applicable L/C Participant of such failure, and each such L/C Participant shall promptly and unconditionally pay to the Administrative Agent or the Canadian Administrative Agent, as applicable, for the account of the relevant Letter of Credit Issuer, the amount of such L/C Participant’s Revolving Credit Commitment Percentage of such unreimbursed payment in Dollars or Canadian Dollars, as applicable, and in immediately available funds; provided, however, that no L/C Participant shall be obligated to pay to the Administrative Agent or the Canadian Administrative Agent, as applicable, for the account of the relevant Letter of Credit Issuer its Revolving Credit Commitment Percentage of such unreimbursed amount arising from any wrongful payment made by such relevant Letter of Credit Party 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 the relevant Letter of Credit Issuer so notifies, prior to 11:00 a.m. (New York time) on any Business Day, any L/C Participant required to fund a payment under a Letter of Credit, such L/C Participant shall make available to the Administrative Agent or the Canadian Administrative Agent, as applicable, for the account of such Letter of Credit Issuer such L/C Participant’s Revolving Credit Commitment Percentage of the amount of such payment on such Business Day in immediately available funds. If and to the extent such L/C Participant shall not have so made its Revolving Credit Commitment Percentage of the amount of such payment available to the Administrative Agent or the Canadian Administrative Agent, as applicable, for the account of the relevant Letter of Credit Issuer, such L/C Participant agrees to pay to the Administrative Agent or the Canadian Administrative Agent, as applicable, for the account of such Letter of Credit 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 Administrative Agent or the Canadian Administrative Agent, as applicable, for the account of such Letter of Credit Issuer at the Federal Funds Effective Rate, in the case of any amount for the account of the US Letter of Credit Issuer, or the rate reasonably determined by the Canadian Letter of Credit Issuer to be the cost to it of funding the payment under the applicable Letter of Credit issued by it, in the case of any amount for the account of the Canadian Letter of Credit Issuer. The failure of any L/C Participant to make available to the Administrative Agent or the Canadian Administrative Agent, as applicable, for the account of the relevant Letter of Credit Issuer its Revolving Credit Commitment Percentage of any payment under any Letter of Credit shall not relieve any other L/C Participant of its obligation hereunder to make available to the Administrative Agent or the Canadian Administrative Agent, as applicable, for the account of such Letter of Credit Issuer its Revolving Credit Commitment Percentage of any payment under such Letter of Credit on the date required, as specified above, but no L/C Participant shall be responsible for the failure of any other L/C Participant to make available to the Administrative Agent or the Canadian Administrative Agent, as applicable, such other L/C Participant’s Revolving Credit Commitment Percentage of any such payment.
(f) Whenever any Letter of Credit Issuer receives a payment in respect of an unpaid reimbursement obligation as to which the Administrative Agent or the Canadian Administrative Agent, as applicable, has received for the account of such Letter of Credit Issuer any payments from the L/C Participants pursuant to paragraph (e) above, such Letter of Credit Issuer shall pay to the Administrative Agent or the Canadian Administrative Agent, as applicable, and the Administrative Agent or the Canadian Administrative Agent, as applicable, shall promptly pay to each L/C Participant that has paid its Revolving Credit Commitment Percentage of such reimbursement obligation, in Dollars or Canadian Dollars, as applicable, and in immediately available funds, an amount equal to such L/C Participant’s share (based upon the proportionate aggregate amount originally funded by such L/C Participant to the aggregate amount funded by all applicable L/C Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective L/C Participations.
(g) The obligations of the L/C Participants to make payments to the Administrative Agent or the Canadian Administrative Agent for the account of a 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 Lenderother qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including under any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Credit Documents;
(ii) the existence of any claim, set-off, defense or other right that either Borrower may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, the Canadian Administrative Agent, any Letter of Credit Issuer, any Lender or other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the US Borrower or the Canadian Borrower, as applicable, and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default; provided, however, that no L/C Participant shall be obligated to pay to the Administrative Agent or the Canadian Administrative Agent for the account of a Letter of Credit Issuer its Revolving Credit Commitment Percentage of any unreimbursed amount arising from 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.
Appears in 1 contract
Letter of Credit Participations. (a) Immediately upon the issuance by any Facing Agent Issuing Lender of any Letter of Credit, such Facing Agent Issuing Lender shall be deemed to have sold and transferred to (i) in the case of a Canadian Borrower Letter of Credit, each Multicurrency Revolving Canadian Borrower RL Lender and (ii) in the case of a U.S. Borrower Letter of Credit, each U.S. Borrower RL Lender (each such Lender with respect to each Multicurrency Letter of Credit and (ii) each Canadian Revolving Lender with respect to each Canadian any Letter of Credit, in each case, other than such Facing Agent (each such Lender, in its capacity under this Section 2.10(e)2.04, a “LC Participant”), and each such LC Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Facing AgentIssuing Lender, without recourse or warranty, an undivided interest and participation, in a percentage equal to (x) in the extent case of such Revolving Lender’s Multicurrency Revolver Pro Rata Share (with respect to Multicurrency Letters a Canadian Borrower Letter of Credit, such Participant’s Canadian Borrower RL Percentage or (y) and in the case of a U.S. Borrower Letter of Credit, such Participant’s U.S. Borrower RL Percentage, in such Canadian Lender’s Canadian Revolver Pro Rata Share (with respect to Canadian Letters Borrower Letter of Credit or U.S. Borrower Letter of Credit), as the case may be, in such Letter of Credit, each substitute Letter of Credit, each Drawing drawing or payment made thereunder (each, a “Drawing”) and the obligations of the Borrowers respective Borrower under this Agreement with respect thereto (although Letter of Credit fees Fees shall be payable directly to the Administrative Agent for the account of the LC Participant Canadian Borrower RL Lenders or U.S. Borrower RL Lenders, as the case may be, as provided in Section 2.10(g3.01(b) and the LC Participants shall have no right to receive any portion of the facing fees), any Facing Fees with respect to any such Letters of Credit) and any security therefor or guaranty pertaining thereto. Upon any change in the Multicurrency Revolving Commitments of the Multicurrency Revolving Lenders or (x) the Canadian Borrower Revolving Loan Commitments and, as a result thereof the Canadian Borrower RL Percentages, of the Canadian Revolving LendersBorrower RL Lenders pursuant to Sections 1.13 or 13.04, it is hereby agreed that, with respect to all outstanding Canadian Borrower Letters of Credit and Unpaid Drawings relating to Letters of Creditthereto, there shall be an automatic adjustment to the participations pursuant to this Section 2.10(e) 2.04 to reflect the new Multicurrency Revolver Pro Rata Share Canadian Borrower RL Percentages of the Canadian Borrower RL Lenders and (y) the U.S. Borrower Revolving Loan Commitments and, as a result thereof the U.S. Borrower RL Percentages, of the U.S. Borrower RL Lenders pursuant to Sections 1.13 or 13.04, it is hereby agreed that with respect to all outstanding U.S. Borrower Letters of Credit and Unpaid Drawings relating thereto, there shall be an automatic adjustment to the participations pursuant to this Section 2.04 to reflect the new U.S. Borrower RL Percentages of the U.S. Borrower RL Lenders. With respect to each Letter of Credit from time to time outstanding, the percentage participations therein of the various Canadian Revolver Pro Rata ShareBorrower RL Lenders (in the case of a Canadian Borrower Letter of Credit) or U.S. Borrower RL Lenders (in the case of a U.S. Borrower Letter of Credit) calculated as provided above in this Section 2.04(a) are herein called the “L/C Participation Percentages” of the various Canadian Borrower RL Lenders or U.S. Borrower RL Lenders, as the case may be, in such Letters of Credit. All calculations of the assignor and assignee Lender or of all Lenders with Multicurrency Revolving Commitments or Canadian Revolving CommitmentsL/C Participation Percentages shall be made from time to time by the Administrative Agent, as the case may be. which calculations shall be conclusive absent manifest error.
(b) In determining whether to pay under any Letter of Credit, such Facing Agent no Issuing Lender shall have no any obligation relative to the LC Participants other Lenders other than to 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 with the requirements of such Letter of Credit. Any action taken or omitted to be taken by any Facing Agent an Issuing Lender under or in connection with any Letter of Credit issued by it if shall not create for such Issuing Lender any resulting liability to the respective Borrower, any other Credit Party, any Lender or any other Person unless such action is taken or omitted in the absence of to be taken with gross negligence or willful misconduct on the part of such Issuing Lender (as determined by a court of competent jurisdiction in a final and non-appealable judgment rendered decision).
(c) In the event that an Issuing Lender makes any payment under any Letter of Credit issued by it and the Borrower shall not have reimbursed such amount in full to such Issuing Lender pursuant to Section 2.05(a), such Issuing Lender shall promptly notify the Administrative Agent, which shall promptly notify each Participant (i.e., either (x) the Canadian Borrower RL Lenders in the case of a Canadian Borrower Letter of Credit or (y) the U.S. Borrower RL Lenders in the case of a U.S. Borrower Letter of Credit) of such failure, and each Participant shall promptly and unconditionally pay to such Issuing Lender the amount of such Participant’s L/C Participation Percentage (as relates to the respective Letter of Credit) of such unreimbursed payment in U.S. Dollars (or, to the extent the unreimbursed payment is, in accordance with Section 2.05(a), to be reimbursed in Canadian Dollars, in Canadian Dollars) and in same day funds. If the Administrative Agent so notifies, prior to 12:00 Noon (New York time) on any Business Day, any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the respective Issuing Lender in U.S. Dollars (or in Canadian Dollars to the extent such amount is required to be paid in Canadian Dollars pursuant to Section 2.05) such Participant’s L/C Participation Percentage (as relates to the respective Letter of Credit) of the amount of such payment on such Business Day in same day funds. If and to the extent such Participant shall not have so made its L/C Participation Percentage of the amount of such payment available to the respective Issuing Lender, such Participant agrees to pay to 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 such Issuing Lender at the overnight Federal Funds Rate (or, in the case of amounts owed in Canadian Dollars, the cost to the Administrative Agent of acquiring overnight funds in Canadian Dollars) for the first three days and at the interest rate applicable to Revolving Loans that are maintained as Base Rate Loans for each day thereafter. The failure of any Participant to make available to an Issuing Lender its relevant L/C Participation Percentage of any payment under any Letter of Credit issued by such Issuing Lender shall not relieve any other Participant of its obligation hereunder to make available to such Issuing Lender its relevant L/C Participation Percentage of any payment under any Letter of Credit on the date required, as specified above, but no Participant shall be responsible for the failure of any other Participant to make available to such Issuing Lender such other Participant’s relevant L/C Participation Percentage of any such payment.
(d) Whenever an Issuing Lender receives a payment of a reimbursement obligation as to which it has received any payments from the Participants pursuant to clause (c) above, such Issuing Lender shall pay to each such Participant which has paid its RL Percentage thereof, in U.S. Dollars (or, in Canadian Dollars in the case of payments to be made in Canadian Dollars pursuant to Section 2.05(a)) 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 standby 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 each Issuing Lender with respect to Letters of Credit shall be irrevocable and not subject to any qualification or exception whatsoever (except in the case of an Issuing Lender’s gross negligence or willful misconduct (as determined by a court of competent jurisdictionjurisdiction in a final and non-appealable decision)) and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, shall not create for such Facing Agent including, without limitation, any resulting liability to of the following circumstances:
(i) any Credit Party lack of validity or enforceability of this Agreement or any Lenderof the other Credit Documents;
(ii) the existence of any claim, setoff, defense or other right which a Borrower or any of its Subsidiaries may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, any Participant, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the respective Borrower or any Subsidiary of the respective Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default.
Appears in 1 contract
Samples: Credit Agreement (Bway Corp)
Letter of Credit Participations. (a) Immediately upon the issuance by any Facing Agent the US Letter of Credit Issuer of any US Letter of Credit, such Facing Agent the US Letter of Credit Issuer shall be deemed to have sold and transferred to (i) each Multicurrency other Lender that has a US Revolving Lender with respect to each Multicurrency Letter of Credit and (ii) each Canadian Revolving Lender with respect to each Canadian Letter of Credit, in each case, other than such Facing Agent Commitment (each such other Lender, in its capacity under this Section 2.10(e)3.3, a “LC US L/C Participant”), and each such LC US L/C Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Facing Agentthe US Letter of Credit Issuer, without recourse or warranty, an undivided interest and participationparticipation (each a “US L/C Participation”), to the extent of such US L/C Participant’s US Revolving Lender’s Multicurrency Revolver Pro Rata Share (with respect to Multicurrency Letters of Credit) and such Canadian Lender’s Canadian Revolver Pro Rata Share (with respect to Canadian Letters of Credit), as the case may be, Credit Commitment Percentage in such US Letter of Credit, each substitute Letter letter of Creditcredit, each Drawing drawing made thereunder and the obligations of the Borrowers Borrower under this Agreement with respect thereto thereto, and any security therefor or guaranty pertaining thereto.
(although b) Immediately upon the issuance by the Canadian Letter of Credit fees Issuer of any Canadian Letter of Credit, the Canadian Letter of Credit Issuer shall be payable deemed to have sold and transferred to each other Canadian Lender (each such other Lender, in its capacity under this Section 3.3, a “Cdn L/C Participant”), and each such Cdn L/C Participant shall be deemed irrevocably and unconditionally to have purchased and received from the Canadian Letter of Credit Issuer, without recourse or warranty, an undivided interest and participation (each a “Cdn L/C Participation”), to the extent of such Cdn L/C Participant’s Canadian Revolving Credit Commitment Percentage in such Canadian Letter of Credit, each substitute letter of credit, each drawing made thereunder and the obligations of the Canadian Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto.
(c) US Letter of Credit Fees will be paid directly to the Administrative Agent for the ratable account of the LC Participant US L/C Participants as provided in Section 2.10(g) 4.1(b), and Canadian Letter of Credit Fees will be paid directly to the LC Canadian Administrative Agent for the ratable account of the Cdn L/C Participants as provided in Section 4.1(d). The US L/C Participants shall have no right to receive any portion of the facing fees)any US L/C Fronting Fees, and the Cdn L/C Participants shall have no right to receive any security therefor or guaranty pertaining thereto. Upon portion of any change in the Multicurrency Revolving Commitments of the Multicurrency Revolving Lenders or the Canadian Revolving Commitments of the Canadian Revolving Lenders, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings relating to Letters of Credit, there shall be an automatic adjustment pursuant to this Section 2.10(eL/C Fronting Fees.
(d) to reflect the new Multicurrency Revolver Pro Rata Share or Canadian Revolver Pro Rata Share, as the case may be, of the assignor and assignee Lender or of all Lenders with Multicurrency Revolving Commitments or Canadian Revolving Commitments, as the case may be. In determining whether to pay under any Letter of Credit, such Facing Agent the relevant Letter of Credit Issuer shall have no obligation relative to the LC applicable L/C Participants other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by any Facing Agent the relevant Letter of Credit Issuer under or in connection with any Letter of Credit issued by it it, if taken or omitted in the absence of gross negligence or willful misconduct as determined by a final and non-appealable judgment rendered by a court of competent jurisdictionmisconduct, shall not create for such Facing Agent Letter of Credit Issuer any resulting liability liability.
(e) In the event that any Letter of Credit Issuer makes any payment under any Letter of Credit issued by it and the Borrower or the Canadian Borrower, as applicable, shall not have repaid such amount in full to the relevant Letter of Credit Issuer pursuant to Section 3.4(a), such Letter of Credit Issuer shall promptly notify the Administrative Agent or the Canadian Administrative Agent, as applicable, and each applicable L/C Participant of such failure, and each such L/C Participant shall promptly and unconditionally pay to the Administrative Agent or the Canadian Administrative Agent, as applicable, for the account of the relevant Letter of Credit Issuer, the amount of such L/C Participant’s Revolving Credit Commitment Percentage of such unreimbursed payment in Dollars or Canadian Dollars, as applicable, and in immediately available funds; provided, however, that no L/C Participant shall be obligated to pay to the Administrative Agent or the Canadian Administrative Agent, as applicable, for the account of the relevant Letter of Credit Issuer its Revolving Credit Commitment Percentage of such unreimbursed amount arising from any wrongful payment made by such relevant Letter of Credit Party 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 the relevant Letter of Credit Issuer so notifies, prior to 11:00 a.m. (New York City time) on any Business Day, any L/C Participant required to fund a payment under a Letter of Credit, such L/C Participant shall make available to the Administrative Agent or the Canadian Administrative Agent, as applicable, for the account of such Letter of Credit Issuer such L/C Participant’s Revolving Credit Commitment Percentage of the amount of such payment on such Business Day in immediately available funds. If and to the extent such L/C Participant shall not have so made its Revolving Credit Commitment Percentage of the amount of such payment available to the Administrative Agent or the Canadian Administrative Agent, as applicable, for the account of the relevant Letter of Credit Issuer, such L/C Participant agrees to pay to the Administrative Agent or the Canadian Administrative Agent, as applicable, for the account of such Letter of Credit 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 Administrative Agent or the Canadian Administrative Agent, as applicable, for the account of such Letter of Credit Issuer at the Federal Funds Effective Rate, in the case of any amount for the account of the US Letter of Credit Issuer, or the rate reasonably determined by the Canadian Letter of Credit Issuer to be the cost to it of funding the payment under the applicable Letter of Credit issued by it, in the case of any amount for the account of the Canadian Letter of Credit Issuer. The failure of any L/C Participant to make available to the Administrative Agent or the Canadian Administrative Agent, as applicable, for the account of the relevant Letter of Credit Issuer its Revolving Credit Commitment Percentage of any payment under any Letter of Credit shall not relieve any other L/C Participant of its obligation hereunder to make available to the Administrative Agent or the Canadian Administrative Agent, as applicable, for the account of such Letter of Credit Issuer its Revolving Credit Commitment Percentage of any payment under such Letter of Credit on the date required, as specified above, but no L/C Participant shall be responsible for the failure of any other L/C Participant to make available to the Administrative Agent or the Canadian Administrative Agent, as applicable, such other L/C Participant’s Revolving Credit Commitment Percentage of any such payment.
(f) Whenever any Letter of Credit Issuer receives a payment in respect of an unpaid reimbursement obligation as to which the Administrative Agent or the Canadian Administrative Agent, as applicable, has received for the account of such Letter of Credit Issuer any payments from the L/C Participants pursuant to paragraph (e) above, such Letter of Credit Issuer shall pay to the Administrative Agent or the Canadian Administrative Agent, as applicable, and the Administrative Agent or the Canadian Administrative Agent, as applicable, shall promptly pay to each L/C Participant that has paid its Revolving Credit Commitment Percentage of such reimbursement obligation, in Dollars or Canadian Dollars, as applicable, and in immediately available funds, an amount equal to such L/C Participant’s share (based upon the proportionate aggregate amount originally funded by such L/C Participant to the aggregate amount funded by all applicable L/C Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective L/C Participations.
(g) The obligations of the L/C Participants to make payments to the Administrative Agent or the Canadian Administrative Agent for the account of a 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 Lenderother qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including under any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Credit Documents;
(ii) the existence of any claim, set-off, defense or other right that the Borrower may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, the Canadian Administrative Agent, any Letter of Credit Issuer, any Lender or other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the Borrower or the Canadian Borrower, as applicable, and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default; provided, however, that no L/C Participant shall be obligated to pay to the Administrative Agent or the Canadian Administrative Agent for the account of a Letter of Credit Issuer its Revolving Credit Commitment Percentage of any unreimbursed amount arising from 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.
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Samples: Credit Agreement (Jostens IH Corp.)
Letter of Credit Participations. Immediately upon the issuance by any Facing Agent of any Letter of Credit, such Facing Agent shall be deemed to have sold and transferred to (i) each Multicurrency Revolving Lender with respect to each Multicurrency Letter of Credit and (ii) each Canadian Revolving Lender with respect to each Canadian Letter of Credit, in each case, other than such Facing Agent (each such Lender, in its capacity under this Section 2.10(e), a an “LC Participant”), and each such LC Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Facing Agent, without recourse or warranty, an undivided interest and participation, to the extent of such Revolving Lender’s Multicurrency Revolver Pro Rata Share (with respect to Multicurrency Letters of Credit) and such Canadian Revolving Lender’s Canadian Revolver Pro Rata Share (with respect to Canadian Letters of Credit), as the case may be, in such Letter of Credit, each substitute Letter of Credit, each Drawing made thereunder and the obligations of the Borrowers under this Agreement with respect thereto (although Letter of Credit fees shall be payable directly to Administrative Agent for the account of the LC Participant as provided in Section 2.10(g) and the LC Participants shall have no right to receive any portion of the facing fees), and any security therefor or guaranty pertaining thereto. Upon any change in the Multicurrency Revolving Commitments of the Multicurrency Revolving Lenders or the Canadian Revolving Commitments of the Canadian Revolving Lenders, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings relating to Letters of Credit, there shall be an automatic adjustment pursuant to this Section 2.10(e) to reflect the new Multicurrency Revolver Pro Rata Share or Canadian Revolver Pro Rata Share, as the case may be, of the assignor and assignee Lender or of all Lenders with Multicurrency Revolving Commitments or Canadian Revolving Commitments, as the case may be. In determining whether to pay under any Letter of Credit, such Facing Agent shall have no obligation relative to the LC Participants other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by any Facing Agent under or in connection with any Letter of Credit issued by it if taken or omitted in the absence of gross negligence or willful misconduct as determined by a final and non-appealable judgment rendered by a court of competent jurisdiction, shall not create for such Facing Agent any resulting liability to any Credit Party or any Lender.
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